UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


<~ 


KlMi 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


*~ 


CASES 


ON   THE 


MEASURE   OF   DAMAGES. 


To  accompany  tins  volume 

ELEMENTS    OF    THE    LAW   OF    DAMAGES.      Second 
Edition.     By  Arthur  G.  Sedgwick 


A 


COLLECTION  OF  CASES 


ON   THE 


MEASURE   OF  DAMAGES 


BY 


JOSEPH   HENRY   BEALE 

CARTER   PROFESSOR   OF    GENERAL   JURISPRUDENCE    IN 
HARVARD    UNIVERSITY 


SECOND  EDITION 


BOSTON 
LITTLE,  BROWN,  AND   COMPANY 

1909 


T 

33tc55d 


Copyright,  1895, 
By  Joseph  Henry  Beale,  Jb. 

Copyright,  1909, 
By  Joseph  Heney  Beale. 


THE   UNIVERSITY   PRESS,    CAMBRIDGE,    U.S.A. 


Y        ) 

4- 

bo 


PREFACE. 


-3 


In  preparing  a  new  edition  of  this  collection  no  at- 
tempt has  been  made  to  replace  earlier  with  later  cases. 
The  cases  which  have  stood  the  test  of  fourteen  years' 
use  in  class  have  been  retained,  and  new  cases  added 
only  for  the  purpose  of  covering  principles  not  suffi- 
ciently established  by  the  cases  contained  in  the  first 
edition.  New  chapters  have  been  added  on  damages  for 
the  death  of  a  human  being,  and  on  damages  in  eminent 
domain.  The  cases  added  have  been  reprinted  on  the 
same  plan  as  that  adopted  in  the  first  edition. 

J.  H.  BEALE. 


I 


PREFACE 

TO  THE  FIRST  EDITION. 


The  importance  of  the  law  of  Damages  as  a  subject 
for  study  in  the  schools  is  now  becoming  recognized; 
and  this  collection  of  cases  is  offered  primarily  for  the 
use  of  students,  though  it  is  believed  that  it  will  be 
found  useful  by  the  practising  lawyer.  It  may  be 
studied  alone  ;  it  is  however  especially  designed  for  use 
in  connection  with  Mr.  Arthur  G.  Sedgwick's  treatise 
on  the  law  of  Damages  published  in  the  same  series. 

It  is  impracticable  to  include  in  such  a  collection 
cases  involving  every  principle  of  the  law  of  Damages  ; 
nor  if  it  could  be  done  would  it  be  advisable,  since  many 
of  the  cases  would  have  little  or  no  educational  value. 
It  has  been  attempted  to  cover  most  fundamental  con- 
ceptions peculiar  to  the  law  of  Damages,  difficult  or 
controverted  principles,  and  questions  of  novelty  or  of 
special  present  importance.  For  such  parts  of  the  sub- 
ject as  are  not  here  treated,  the  student  is  advised  to 
consult  Mr.  Sedgwick's  treatise.  It  was  found  impossi- 
ble to  follow  the  same  division  and  order  of  presenta- 
tion in  the  two  works,  because  of  their  differing  aim 
and  scope.  There  will  be  no  difficulty,  however,  in 
finding  in  Mr.  Sedgwick's  treatise  the  discussion  of  a 
particular  subject.     In  his  Table   of  Cases,  the   name 


viii  PREFACE. 

of  most  cases  contained  in  this  book  may  be  found ; 
and  the  student  may  thus  consult  Mr.  Sedgwick's  treatise 
in  connection  with  each  case  herein,  and  familiarize 
himself  with  such  principles  as  are  not  discussed  in 
these  cases.  A  consultation  of  Mr.  Sedgwick's  Index 
will  solve  such  other  difficulties  as  may  be  felt. 

In  reprinting  these  cases,  I  have  given  only  the  opin- 
ion when  it  seemed  sufficiently  to  state  the  facts ;  and 
the  omission  of  other  parts  of  a  case  has  not  always 
been  indicated.  The  omission  of  part  of  an  opinion 
has  always  been  noted ;  and  if  the  part  of  the  opinion 
here  reprinted  is  not  consecutive  in  the  original  report, 
the  omissions  are  indicated  by  points.  The  notes  are 
the  compiler's,  unless  otherwise  marked. 

J.  H.  BEALE,  Ju. 
Cambridge,  October  1, 1895. 


TABLE  OF  CONTENTS. 


Page 

Preface      v 

Preface  to  First  Edition vii 

Table  of  Cases xi 

Chapter 

I.  Functions  of  Court  and  Jury  in  Estimating 

Damages 1 

II.  Exemplary  Damages 15 

III.  Liquidated  Damages 37 

IV.  Nominal  Damages 64 

V.     Direct  and  Consequential  Damages    ...  73 

VI.     Avoidable  Consequences 170 

VII.     Counsel  Fees 189 

VIII.     Certainty 205 

IX.     Compensation.     Sec.  1.  Entire  Damages  .     .     .  267 

Sec.  2.  Reduction;  Benefits 287 

3.  Damages  to  Owner  of  Limited  Interest  .  300 

4.  Higher  Intermediate  Value 313 

5.  Damages  upon  Severance  from  Realty    .  329 
X.    Damages  for  Non-Pecuniary  Injuries. 

Sec.  1.  Pain  and  Inconvenience 352 

2.  Mental  Suffering 358 

3.  Aggravation  and  Mitigation      ....  386 
XI.     Value 404 

XII.     Interest 436 

XIII.  Damages  in  certain  Actions  of  Tort  .     .     .  467 

XIV.  Damagas  in  certain  Actions  on  Contracts  .  476 
XV.     Damages  for  the  Death  of  a  Human  Being  564 

XVI.     Damages  in  Eminent  Domain 580 


Index 615 


TABLE  OF  CASES. 


Page 

Allison  v.  Chandler,  11 
Mich.  542 215 

Anon.,  42  Lib.  Assis.  pi.  19       78 

Armory  v.  Delamirie,  1  Str. 
505 300 

Ash  v.  Lady  Ash,  Comb. 
357 5 

Aurora  v.  West,  7  Wall.  82     464 

Bain  v.  Fothergill,  L.  R.  7 
H.  L.  158 539 

Baker  v.  Drake,  53  N.  Y. 
211 315 

Ballou  v.  Farnum,  11  All. 
73      361 

Baltimore  &  O.  R.  R.  v. 
Carr,  71  Md.  135     ...       12 

Baltimore  &  P.  R.  R.  v. 
Fifth  Baptist  Church, 
108  U.S.  317 357 

Barker  v.  Dixie,  2  Str.  1051         6 

Beale  v.  Boston,  166  Mass. 
53      584 

Beardmore  v.  Lord  Hali- 
fax, Say.  Dam.  228   .    .         7 

Bennett  v.  Lockwood,  20 
Wend.  223 467 

Bernstein  v.  Meech,  130 
N.  Y.  354 561 

Bickford  v.  Rich,  105  Mass. 
340 461 

Blood  v.  Wilson,  141  Mass. 
25      511 

Boom  Co.  v.  Patterson,  98 
U.  S.  403      407 

Bradford  v.  Cunard  Steam- 
ship Co.,  147  Mass.  55   .       69 


Page 

Bradley    v.    Hooker,    175 

Mass.  142 426 

Brannon    v.    Hursell,    112 

Mass.  63 459 

Brant  v.   Gallup,    111    111. 

487 181 

Brewster  v.   Warner,    136 

Mass.  57 302 

Brigham  v.  Carlisle,  78  Ala. 

243 251 

Brooks  v.  City  of  Wichita, 

114  Fed.  297 56 

Brosnan  v.  Sweetser,   127 

Ind.  1 298 

Brown  v.  C.  M.  &  S.  P.  Ry., 

54  Wis.  342 145 

Brown  v.  Cummings,  7  All. 

507 82 

Brown  v.  Muller,  L.  R.  7 

Ex.  319 476 

Browning  v.  Wabash  West- 
ern Railway,  124  Mo.  55  13 
Burgoon   v.   Johnson,    194 

Pa.  61 55 

Canning  v.  Williamstown, 

1  Cush.  451      360 

Cary   v.    Gruman,  4  Hill, 

625 552 

Case  v.  Stevens,  137  Mass. 

551 120 

Chadwick    v.    Butler,    28 

Mich.  349 322 

Chapman  v.  Kirby,  49  111. 

211 222 

Chicago  v.  Huenerbein,  85 

111.  594 253 


xu 


TABLE   OF   CASES. 


Page 

Chicago  v.  Taylor,  125 
U.  S.  161 585 

Chicago  &  A.  R.  R.  v. 
Flagg,  43  111.  364   ..    .     356 

Claridge  v.  So.  Staf.  Tram- 
way, [1892]  1  Q.  B.  422     301 

Clark  v.  Marsiglia,  1  Denio, 
317 185 

Clydebank  Engineering  & 
Shipbuilding  Co.  v.  Yz- 
quierdo  y  Castaneda, 
[1905]  A.  C.  6      ....       61 

Comstock  v.  Conn.  Ry.  & 
Lighting  Co.,  77  Conn. 
65      231 

Cook  v.  Beal,  1  Ld.  Raym. 
176 5 

Cory  v.  Thames  Iron  Wks., 
L.  R.  3  Q.  B.  181   ..    .       95 

Currier  v.  Swan,  63  Me.  323     395 


Dana  v.  Fiedler,  12  N.  Y. 

40      444 

Darley  Main  Coll.   Co.  v. 

Mitchell,    11    App.   Cas. 

127 269 

Day    v.    Woodworth,    13 

How.  363 191 

Delves  v.  Wyer,  1  Brownl. 

204 2 

Demarest  v.  Little,  47  N.  J. 

L.  28 475 

Dennis  v.  Maxfield,  10  All. 

138 219 

Denny  v.  N.  Y.  C.  R.  R., 

13  Gray,  481 127 

Derby  v.  Johnson,  2 1  Vt.  1 7  476 
Dodge  v.  Perkins,  9  Pick. 

368 436 

Doolittle  v.  McCullough,  12 

Oh.  St.  360      516 

DuBost    v.    Beresford,    2 

Camp.  511 430 

Dubuque  W.  &  C.  Assoc. 

v.  Dubuque,  30  la.  176  .  85 
Duval  v.  Davey,  32  Oh.  St. 

604 398 


Page 

Eaton  v.  Boissonnault,  67 

Me.  540 459 

Ehrgott  v.  Mayor  of  New 

York,  96  N.  Y.  264  .  .  88 
Ellis  v.  Hilton,   78  Mich. 

150 467 

Elmer  v.    Fessenden,    154 

Mass.  427 299 


Fairfax  v.  N.  Y.  C.  &  H.  R. 

R.  R.,  73  N.  Y.  167  .  .  428 
Fetter  v.  Beal,  1  Ld.  Raym. 

339,  692 267 

Forsyth  v.  Wells,  41  Pa. 

291 329 

Fowler  v.  Gilman,  13  Met. 

267 309 

Fox  v.  B.  &  M.  R.  R.,  148 

Mass.  220 131 

Flureau  v.  Thornhill,  2  W. 

Bl.  1078 538 

France  v.  Gaudet,  L.  R.  6 

Q.  B.  199 420 

Frazer  v.  Bigelow  Carpet 

Co.,  141  Mass.  126  .  .  448 
Furnas  v.  Durgin,  119  Mass. 

500 525 

Galigher  v.  Jones,  129  U.  S. 

193 326 

Glaspy  v.  Cabot,  135  Mass. 

435 429 

Goddard  v.  G.  T.  Ry.,  57 

Me.  202 17 

Goodrich  v.   Hubbard,  51 

Mich.  62 503 

Goodyear  Shoe  Machinery 

v.  Lely,  Schwab,  &  Co., 

157  111.  186      52 

Grable  v.  Margrave,  4  111. 

372 386 

Grand  Tower  Co.  v.  Phil- 
lips, 23  Wall.  471  ..  .  405 
Grand  Trunk   Railway  v. 

Jennings,   13  App.  Cas. 

800 564 


TABLE   OF   CASES. 


Xlll 


Page 

Greene  v.  B.  &  L.  R.  R.,  128 

Mass.  221 428 

Greene  v.  Goddard,  9  Met. 

212 206 

Griffin  v.  Colver,  16  N.  Y. 

489 208 

Guille  v.  Swan,  19  Johns. 

381 79 


Hadley  v.  Baxendale,  9  Ex. 

341 92 

Haines  v.  Schultz,  50  N.  J. 

L.  481 26 

Hammond   v.   Bussey,   20 

Q.  B.  Div.  79 107 

Harris  v.  Panama  R.  R., 

58  N.  Y.  660 425 

Hawkins  v.  Sciet,  Palmer, 

314 2 

Hayward    v.    Leonard,    7 

Pick.  181 512  n. 

Henry  v.  Flagg,  13  Met.  64  462 
Hibbard  v.  W.  U.  T.  Co., 

33  Wis.  558 66 

High    v.    Berret,   148    Pa. 

261 475  n. 

Hobbs  v.  L.  &  S.  W.  Ry., 

L.  R.  10  Q.  B.  Ill  ...  134 
Hoffman  v.   Chamberlain, 

40  N.  J.  Eq.  663  ..  .  556 
Hopkins  v.  Lee,  6  Wheat. 

109 548 

Hopple  v.  Higbee,  3  Zab. 

342 287 

Home    v.    Midland     Ry., 

L.  R.  7  C.  P.  583  ..  .  102 
Horsf  ordv.  Wright,  Kirby,  3  528 
Hossler  v.  Trump,  62  Ohio 

St.  139      70 

Howe  Machine  Co.  v.  Bry- 

eon,  44  la.  159  ...  .  230 
Huckle  v.  Money,  2  Wils. 

205 15 

Hunt  v.  J.,  Y.  B.  Ed.  II. 

375 1 

Hutchinson  v.  Snider,  137 

Pa.  1 559 


Page 
Indianapolis,  B.  &  W.  Ry. 

v.  Birney,  71  111.  391  .  .  174 
Ingram  v.  Rankin,  47  Wis. 

406 323 


Jackson  v.  Turrell,  39  N.  J. 

L.  329 311 

Jewett  v.  Whitney,  43  Me. 

242 295 

Johnson  v.  Stear,  15  C.  B. 

n.  s.  330 304 

Joseph  Schlitz  Brewing  Co. 

v.  Compton,  142  111.  511     280 


Kadish  v.  Young,  108  111. 

170 485 

Keeble  v.  Keeble,  85  Ala. 

552 39 

Kemble  v.  Farren,  6  Bing. 

141 37 

Kenrig  v.  Eggleston,  Aleyn, 

93 73 

Kent  v.  Kelway,  Lane,  70  78 
Kountz  v.  Kirkpatrick,  72 

Pa.  376 412 


Lake  S.   &  M.   S.   Ry.   v. 

Prentice,  147  U.  S.  101  30 
Larson  v.  Chase,  47  Minn. 

307 382 

Lawrence  v.  Hagerman,  56 

111.  68 469 

Le  Blanche  v.  L.  &  N.  W. 

Ry.,  1  C.  P.  Div.  286  .  187 
Leeds  v.  Metropolitan  Gas- 
light Co.,  90  N.  Y.  26  .  67 
Linsley    v.    Bushnell,     15 

Conn.  225 189 

Loker  v.  Damon,  17  Pick. 

284 170 

Louisville  &  N.  R.  R.  v. 

Wallace,  91  Tenn.  35  .  452 
Lynch  v.  Knight,  9  H.  L. 

Cas.  577 360  n. 


XIV 


TABLE  OF   CASES. 


Page 


Lynn  Gas  &  El.  Co.  v. 
Meriden  F.  I.  Co.,  158 
Mass.  570 123 


Page 


National  Bk.  of  Commerce 
v.  New  Bedford,  155 
Mass.  313 410 


McHose  v.  Fulmer,  73  Pa. 

365 H9 

McLean  County  Coal  Co. 

v.  Long,  81  111.  359   .    .     332 
McMahon  v.  Field,  7  Q.  B. 

D.  591       141 

McMahon  v.  N.  Y.  &  E. 

R.  R.,  20  N.  Y.  463  .    .     445 
Mahoney  v.   Belford,    132 

Mass.  393 401 

Mann  Boudoir  Car  Co.  v. 

Dupre,  54  Fed.  646   .    .       75 
Margraf  v.  Muir,  57  N.  Y. 

155 550 

Masterton    v.     Mayor    of 

Brooklyn,  7  Hill,  62   .    .     491 
Masterton  v.   Mount  Ver- 
non, 58  N.  Y.  391    ...     228 
Mather  v.  Amer.  Ex.  Co., 

138  Mass.  55 121 

Maynard  v.  Pease,  99  Mass. 

555 313 

Mayo   v.    Springfield,    138 

Mass.  70 296 

Meagher    v.    Driscoll,    99 

Mass.  281 365 

Mellish  v.  Arnold,  Bunb.  51        6 
Merest  v.  Harvey,  5  Taunt. 

442 358 

Monmouth  Park  Assoc,  v. 
Wallis   Iron  Works,   55 

N.  J.  L.  132 46 

Morse    v.    Hutchins,    102 

Mass.  439 471 

Murdock  v.  B.  &  A.  R.  R., 

133  Mass.  15 143 

Murdock  v.  N.  Y.  &  Boston 
Despatch  Express  Co., 
167  Mass.  549  ...  230 
Murphyv.Hobbs,7Col.541  21 
Murphy  v.  United  States 
Fidelity  &  Guaranty  Co. 
100  App.  Div.  93   .    .    .       50 


O'Hanlan  v.  Great  Western 
Ry.,  6  B.  &  S.  484   ...     404 

Old  Colony  R.  R.  v.  Miller, 
125  Mass.  1      457 


Palmer  v.  Crook,  7  Gray, 

418 393 

Parker     v.     Russell,     133 

Mass.  74 277 

Peek  v.  Deny,  37  Ch.  Div. 

541 475n. 

Pennsylvania    R.     R.     v. 

Allen,  53  Pa.  276   ..    . 

Pennsylvania  R.  R.  v.  W. 

S.  L.  &  P.  Ry.,  157  U.  S. 

225 

Peoria,     Bloomington,     & 

Champaign  Traction  Co. 

v.  Vance,  225  111.  270   . 

Peppercorn  v.  Black  River 

Falls,  61  N.  W.  79   .    .     299  n 
Perrott  v.  Shearer,  17  Mich. 

48      

Phillips  v.  L.  &  S.  W.  Ry., 

5  Q.  B.  Div.  78  ...    • 

Plummer  v.  Penobscot  L. 

Ass.,  67  Me.  363  .    .    .    . 

Pond  v.  Harris,  113  Mass. 

114 

Postal  Tel.  C.  Co.  v.  Lath- 

rop,  131  111.  575      ... 

Primrose  v.  W.  U.  T.  Co., 

154  U.  S.  1 


352 


90 


608 


296 


S 


180 


195 


158 
164 


Radcliff  v.  Mayor  of  Brook- 
lyn, 4  N. Y.  195      ... 
Railroad  v.  Allen,  53  Pa. 

276 

v.  Birney,  71  111.  391  . 
v.  Carr,  71  Md.  135  . 


580 

352 

174 
12 


TABLE   OF   CASES. 


XY 


Page 

Railroad   v.    Elliott,    149 

U.  S.  266  .  ...  265 
v.  Fif  thBaptistChurch, 

108  U.  S.  317  .  357 
v.  Flagg,  43  111.  364  .  356 
v.  Miller,  125  Mass.  1  457 
v.  Prentice,  147  U.  S. 

101 30 

v.  W.  S.  L.  &  P.  Ry., 

157  U.  S. 225  .  .  90 
v.  Wallace,  91  Tenn. 

35      452 

Redmond   v.   Amer.    Mfg. 

Co.,  121  N.  Y.  415  .  .  431 
Renihan    v.    Wright,    125 

Ind.  536 384 

Rice  v.  Rice,  62  N.  W.  Rep. 

833 205 

Richards  v.  Cit.  Nat.  Gas 

Co.,  130  Pa.  37  ...  .  449 
Richmond  &  D.  R.  R.  v. 

Elliott,  149  U.  S.  266  ,  265 
Robinson  v.  Waupaca,  77 

Wis.  544 10 

Roehm  v.  Horst,  1 78  U.  S.  1     490 
Roper  v .  Johnson,  L.  R.  8 

C.  P.  167 478 

Roth  v.  Taysen,  12  T.  L. 

R.  211 482 

Ryerson  v.   Chapman,   66 
Me.  557 196 

Salladay  v.  Dodgeville,  85 

Wis.  318 183 

Sayre  v.  Sayre,   1  Dutch. 

235 389 

Seneca  Road  v.  A.  &  R. 

R.  R.,  5  Hill,  170  ..  .  65  n. 
Serwe  v.  N.  P.  R.  R.,  48 

Minn.  78 146n. 

Sharp  v.  United  States,  191 

U.  S.  341 594 

Simpson  v.  Keokuk,  34  la. 

568 174 

Single  v.  Schneider,  24  Wis. 

299 337 

Smith  v.  Bergengren,  153 

Mass.  236 42 


Smith  v.  Bolles,  132  U.  S. 

125 469 

Smith  v.  Green,  1  C.  P.  D. 

92      105 

Smith  v.  Holcomb,  99  Mass. 

552 394 

South    Park    Comm'rs    v. 

Dunlevy,  91  111.  49  .  .  458 
Squire  v.  W.  U.  T.  Co.,  98 

Mass.  232 152 

Staats    v.    Ten    Eyck,    3 

Caines,  111 529 

Stickney  v.  Allen,  10  Gray, 

352 424 

Stodghill    v.   C.   B.   &   Q. 

R.  R.,  53  la.  341  ..  .  272 
Storey  v.  Early,  86  111.  461  397 
Stowe    v.     Buttrick,     125 

Mass.  449 512 

Sun  Printing  &  Pub.  Assoc. 

v.  Moore,  183  U.  S.  642  58 
Sutherland  v.  Wyer,  67  Me. 

64      177 

Swift    v.    Dickerman,    31 

Conn.  285 367 


Tennessee     Mfg.     Co.     v. 

James,  91  Tenn.  154  .  .  43 
Tice  v.  Munn,  94  N.  Y.  621  74 
Tilley    v.    Hudson    River 

Railroad,  29  N.  Y.  252  568 
Tony  v.  Black,  58  N.  Y. 

185 293 

Townsend,  Lord,  v.  Hughes, 

2  Mod.  150 2 

Tuttle  v.  White,  46  Mich. 

485 349 

United  States  v.  Behan, 
110  U.  S.  338 505 

Van  Rensselaer  v.  Jewett, 
2  Comst.  135 441 

Village   of   St.    Johnsville 

v.  Smith,  184  N.  Y.  341     600 


XVI 


TABLE   OF  CASES. 


Vogel  v.  McAuliffe,  31  Atl.  1     366 
Vosburg  v.  Putney,  80  Wis. 
523 76 


Wadsworth  v.  W.  U.  T.  Co., 

86  Tenn.  695 368 

Wakeman   v.   Wheeler    & 

Wilson    Mfg.    Co.,    101 

N.  Y.  205 233 

Welch  v.  Anderson,  61  L.  J. 

n.  s.  Q.  B.  167  ....  115 
W.  U.  T.  Co.  v.  Hall,  124 

U.  S.  444 256 

W.  U.  T.  Co.  v.  Hyer,  22 

Fla.  637 156 

W.  U.  T.  Co.  v.  Rogers,  68 

Miss.  748      375 

Westfield    v.    Mayo,    122 

Mass.  100 200 


Page 
Weymouth  v.  C.  &  N.  W. 

Ry.,  15  Wis.  550  ...  340n. 
White  v.  Allen,  133  Mass. 

423 311n. 

Wicker  v .  Hoppock,  6  Wall. 

94      523 

Wiest  v.  Electric  Traction 

Co.,  200  Pa.  148  ...  578 
Winchester    v.    Craig,    33 

Mich.  205 341 

Wolcott  v.  Mount,  36  N.  J. 

L.  262       225 

Wolf  v.  Studebaker,  65  Pa. 

459 171 

Wood  v.  Waud,  3  Ex.  748  64 
Worster  v.  Canal  Bridge, 

16  Pick.  541 9 

Wright   v.    Mulvaney,    78 

Wis.  89 263 


CASES   ON   DAMAGES. 


CHAPTER    I. 

FUNCTIONS   OP   COURT  AND   JURY   IN   ESTIMATING   DAMAGES. 


HUNT  v.   J. 

Common  Pleas,  1319.     Maynard's  Year  Book,  375. 

Miles  le  Hunt  of  Stratford  brought  writ  of  debt  against 
Simon  de  J.,  and  demanded  from  him  30  quarters  of  wheat 
of  the  value  of  £20,  and  put  forward  a  deed  which  witnesses 
the  debt,  &c.  Simon  says  that  he  was  within  age  at  the 
time  of  the  making  of  the  deed,  &c.  The  inquest  says  that 
he  was  of  full  age,  &c.  [The  Court]  Of  what  value  was  the 
wheat  at  the  time  he  should  have  paid  it? 

The  Inquest.  At  the  time  he  made  the  writing  the  quar- 
ter was  worth  only  3s.,  but  when  he  should  have  paid  it,  it 
was  worth  12s.  Bereford,  C.J.  Speak  of  the  damages 
from  the  detinue.     The  Inquest.     To  the  damage  of  £10. 

And  because  the  value  of  the  wheat  at  the  time  he  should 
have  paid  amounted  to  £18,  scil.  12s.  the  quarter,  it  was  sug- 
gested to  the  court  that  the  damages  were  taxed  too  high, 
wherefore  the  court  reduced  the  damages  and  awarded  that 
he  should  receive  £18  for  the  wheat  and  40s.  for  the  damages. 
And  so  note,  that  whereas  he  demanded  wheat  he  recovered 
the  value  of  the  wheat  at  the  time  it  should  have  been  paid, 
and  not  the  wheat.  Likewise  that  although  the  defendant 
was  held  liable  for  the  claim  because  he  was  found  of  full  age, 
the  plaintiff  did  not  recover  the  price  set  in  his  writ,  but  the 
price  taxed  by  the  inquest,  ut  supra.  Likewise  note,  that  the 
justices  measured  the  damages,  as  appears,  &c. 

1 


2  CASES  ON  DAMAGES. 

DELVES  v.  WYER. 

Common  Pleas,  1605.     1  Brownl.  204. 

The  plaintiff  brought  an  action  of  trespass  for  breaking 
his  close,  and  for  cropping  200  pear-trees  and  100  apple- 
trees,  and  damage  found  to  £40.  And  the  court  was  moved 
by  Hichardson,  for  that  the  damages  might  be  mitigated, 
because  he  produced  an  affidavit  whereby  it  appeared  that  the 
party  himself  before  the  action  brought  would  have  took  £5  ; 
but  denied.  For  the  court  said  that  they  could  not  diminish 
the  damages  in  trespass  which  was  local,  and  therefore  could 
not  appear  to  them,  and  the  damages  might  well  amount  to 
£40  for  cropping  of  an  orchard :  and  so 

Judgment  entered. 

HAWKINS   v.   SCIET. 

King's  Bench,  1622.     Palmer,  314. 

In  action  on  the  case  for  calling  one  a  bankrupt,  it  was 
found  on  general  issue  for  the  plaintiff,  and  £150  damages 
given.  And  for  this  great  damage  the  court,  by  reason  of 
certain  circumstances,  reduced  them  to  £50.  But  afterwards,, 
upon  great  consideration,  they  revoked  this,  and  would  not 
change  the  course  of  law  ;  and  resolved  to  leave  such  matters 
of  fact  to  the  finding  of  the  jury,  which  better  knows  the 
quality  of  the  persons  and  their  estate,  and  the  damage  that 
the}'  may  sustain  by  such  disgrace.  Otherwise  where  the 
action  is  grounded  on  a  cause  which  ma}-  appear  in  the  sight 
of  the  court,  so  that  the}'  ma}'  judge  of  it,  as  in  mayhem, 
&c.  And  so  is  Dyer,  105.  And  therefore  they  give  judg- 
ment on  the  verdict  for  £150. 

LORD  TOWNSEND   v.   HUGHES. 

Common  Pleas,  1677.    2  Mod.  150. 

The  plaintiff  brought  an  action  of  scandalum  magnatum 
for  these  words  spoken  of  him  by  the  defendant,  viz.,  "He 


LORD  TOWXSEXD   v.   HUGHES.  3 

is  an  unworthy  man,  and  acts  against  law  and  reason." 
Upon  Not  guilty  pleaded,  the  case  was  tried,  and  the  jury 
gave  the  plaintiff  four  thousand  pounds  damages.1  It  was 
therefore  moved  for  a  new  trial  upon  these  reasons  :  Third]}', 
and  which  was  the  principal  reason,  because  the  damages 
were  excessive. 

The  court  delivered  their  opinions  seriatim.      And  first, 

North,  C.J.,  said:  In  cases  of  fines  for  criminal  matters, 
a  man  is  to  be  fined  by  Magna  Charta  with  a  salvo  contene- 
mento  suo ;  and  no  fine  is  to  be  imposed  greater  than  he  is 
able  to  pay  ;  but  in  civil  actions  the  plaintiff  is  to  recover  by 
way  of  compensation  for  the  damages  he  hath  sustained,  and 
the  jury  are  the  proper  judges  thereof.  This  is  a  civil  action 
brought  by  the  plaintiff  for  words  spoken  of  him,  which  if 
they  are  in  their  own  nature  actionable,  the  jury  ought  to 
consider  the  damage  which  the  part}*  ma}'  sustain  ;  but  if  a 
particular  averment  of  special  damages  make  them  actionable, 
then  the  jury  are  only  to  consider  such  damages  as  are 
already  sustained,  and  not  such  as  may  happen  in  future,  be- 
cause for  such  the  plaintiff  may  have  a  new  action.  He  said, 
that  as  a  judge  he  could  not  tell  what  value  to  set  upon  the 
honor  of  the  plaintiff;  the  jury  have  given  four  thousand 
pounds,  and  therefore  he  could  neither  lessen  the  sum  or 
grant  a  new  trial,  especially  since  by  the  law  the  jury  are 
judges  of  the  damages ;  and  it  would  be  very  inconvenient 
to  examine  upon  what  account  the}'  gave  their  verdict ;  the}', 
having  found  the  defendant  guilty,  did  believe  the  witnesses, 
and  he  could  not  now  make  a  doubt  of  their  credibility. 

Wyndham,  J.,  accorded  in  omnibus. 

Atkins,  J.,  contra.  That  a  new  trial  should  be  granted, 
for  it  is  every  day's  practice  ;  and  he  remembered  the  case  of 
Gouldston  v.  Wood,  in  the  King's  Bench,  where  the  plaintiff 
in  an  action  on  the  case  for  words  for  calling  of  him  bank- 
rupt, recovered  fifteen  hundred  pounds,  and  that  court 
granted  a  new  trial,  because  the  damages  were  excessive. 

1  Part  of  the  case,  not  involving  a  question  of  damages,  is  omitted. 


4  CASES  ON  DAMAGES. 

The  jury  in  this  case  ought  to  have  respect  only  to  the  dam- 
age which  the  plaintiff  sustained,  and  not  to  do  an  unaccount- 
able thing  that  he  might  have  an  opportunity  to  show  himself 
generous  ;  and  as  the  court  ought  with  one  eye  to  look  upon 
the  verdict,  so  with  the  other  they  ought  to  take  notice 
what  is  contained  in  the  declaration,  and  then  to  consider 
whether  the  words  and  damages  bear  any  proportion ;  if  not, 
then  the  court  ought  to  lay  their  hands  upon  the  verdict :  it 
is  true,  they  cannot  lessen  the  damages,  but  if  they  are  too 
great  the  court  may  grant  a  new  trial. 

Scroggs,  J.,  accorded,  with  North  and  Wyndham,  that  no 
new  trial  can  be  granted  in  this  cause.  He  said,  that  he  was 
of  counsel  with  the  plaintiff  before  he  was  called  to  the  bench, 
and  might  therefore  be  supposed  to  give  judgment  in  favor  of 
his  former  client,  being  prepossessed  in  the  cause,  or  else  (to 
show  himself  more  signally  just)  might  without  considering 
the  matter  give  judgment  against  him  ;  but  that  now  he  had 
forgot  all  former  relation  thereunto  ;  and  therefore  delivered 
his  opinion,  that  if  he  had  been  of  the  jury  he  should  not 
have  given  such  a  verdict ;  and  if  he  had  been  plaintiff  he 
would  not  take  advantage  of  it ;  but  would  overcome  with 
forgiveness  such  follies  and  indiscretions  of  which  the  defend- 
ant had  been  guilty  :  but  that  he  did  not  sit  there  to  give  ad- 
vice, but  to  do  justice  to  the  people.  He  did  agree  that  where 
an  unequal  trial  was  (as  such  must  be  where  there  is  any  prac- 
tice with  the  jury),  in  such  case  it  is  good  reason  to  grant  a 
new  trial ;  but  no  such  thing  appearing  to  him  in  this  case, 
a  new  trial  could  not  be  granted.  Suppose  the  jury  had 
given  a  scandalous  verdict  for  the  plaintiff,  as  a  penny  dam- 
ages, he  could  not  have  obtained  a  new  trial  in  hopes  to 
increase  them,  neither  shall  the  defendant  in  hopes  to  lessen 
them.  And  therefore  by  the  opinion  of  these  three  justices  a 
new  trial  was  not  granted. 


COOK  v.  BEAL.  O 

ASH  v.  LADY  ASH. 

King's  Bench,  1695.     Comb.  357. 

Assault,  batteiy,  and  false  imprisonment.  The  Lady  Ash 
pretended  that  her  daughter  the  plaintiff  was  troubled  in 
mind,  and  brought  an  apothecary  to  give  her  physic ;  and 
they  bound  her,  and  would  have  compelled  her  to  take  phy- 
sic. She  was  confined  but  about  two  or  three  hours,  and 
the  jury  gave  her  £2000  damages. 

Sir  Barth.  Shower  moved  for  a  new  trial  for  the  exces- 
siveness  of  the  damages. 

Holt,  C.J.  The  jury  were  very  shy  of  giving  a  reason  of 
their  verdict,  thinking  they  have  an  absolute  despotic  power, 
but  I  did  rectify  that  mistake,  for  the  jury  are  to  try  causes 
with  the  assistance  of  the  judges,  and  ought  to  give  reasons 
when  required,  that  if  they  go  upon  any  mistake  they  may  be 
set  right.    And  a  new  trial  was  granted. 


COOK  v.   BEAL. 

Common  Pleas,  1696.     1  Ld.  Raym.  176. 

Trespass,  assault  and  battery.  The  plaintiff  declares,  that 
the  defendant  cum  manu  sua  ipsum  Thomam  Cook  super 
sinistrum  oculum  percussit  et  violavit  ita  quod  the  said 
Thomas  Cook,  viz.,  the  plaintiff  peuitus  inhabilis  devenit  ad 
scribendum  vel  legendum,  being  an  officer  of  the  excise,  &c. 
Not  guilty  pleaded.  Verdict  for  the  plaintiff.  And  Birch, 
Serjeant,  moved,  that  the  court  would  increase  the  damages, 
upon  affidavit  that  the  plaintiff  had  lost  his  eye.  But  the  court 
ordered  the  plaintiff  to  appear  in  court  in  person,  for  other- 
wise they  said,  that  they  could  not  increase  the  damages ; 
upon  which  the  plaintiff  was  brought  into  court.  And  after- 
wards the  court  after  several  motions  resolved, 

1.  That  if  the  word  mayhemiavit  is  not  in  the  declaration, 
yet  if  the  declaration  be  particular,  so  that  it  appears,  by  the 


6  CASES  ON  DAMAGES. 

description,  that  the  wound  was  a  maim,  it  is  sufficient,  and 
the  court  may  increase  damages.  Rast.  Ent.  46,  a  ;  8  Hen. 
4.  21,  b. 

2.  Resolved,  that  the  court  ma}'  increase  the  damages  if 
the  wound  be  apparent,  though  it  be  not  a  maim.  And  so 
it  was  done  in  the  case  of  Lord  Foliot,  Sty.  310  ;  1  Roll.  Abr. 
573,  I.  13  ;  7  Vin.  278,  pi.  4  ;  2  Danv.  452,  pi.  4.  Therefore, 
in  this  case,  because  the  wound  is  visible,  though  it  be  no 
maim  (for  it  is  not  a  maim  because  the  eye  is  not  wholly  out, 
but  the  plaintiff  only  declares,  quod  inhabilis  ad  legendum 
vel  scribendum  devenit  by  the  wound),  j-et  damages  may  be 
increased.  And  Powell,  J.,  said,  that  Holt,  C.J.,  was  of 
that  opinion.  So  (per  Powell,  J.),  though  the  loss  of  a 
nose  is  not  a  maim,  to  bring  an  action  felonlce  for  the 
loss  of  it,  yet  the  court  may  in  such  case  increase  the 
damages.  And  he  said,  that  the  court  might  increase  the 
damages  upon  a  writ  of  inquiry,  because  that  was  but  a  bare 
inquest  of  office,  and  a  case  between  Swalley  and  Babington 
was  cited,  where  in  a  general  action  of  assault,  battery,  and 
wounding,  upon  view  the  damages  were  increased  about  four 
years  ago,  upon  the  motion  of  Serjeant  Lovell.1 

MELLISH  v.   ARNOLD. 

Exchequer,  1719.     Bunb.  51. 

In  an  action  brought  against  an  officer  for  a  seizure  absque 
probabili  causa  a  new  trial  was  granted,  because  the  jury 
threw  up  cross  or  pile,  whether  they  should  give  the  plaintiff 
three  hundred  pounds  or  five  hundred  pounds  damages,  and 
the  chance  of  five  hundred  pounds  came  up. 

BARKER  v.  DIXIE. 
King's  Bench,  1737.     2  Strange,  1051. 

In  case  for  a  malicious  prosecution  of  an  indictment  for 
felony,  the  jury  found  for  the  plaintiff,  and  gave  5s.  damages. 
1  ThPi  third  resolution  is  omitted. 


BEARDMORE  v.  LORD  HALIFAX.  7 

And  upon  motion  for  a  new  trial  on  account  of  the  smallness 
of  damages,  the  court  held  there  could  be  no  new  trial  on 
that  account :  for  this  was  not  a  false  verdict,  as  finding  for 
the  defendant  would  be,  and  would  subject  them  to  an  attaint ; 
whereas  they  having  found  rightly  for  the  plaintiff,  no  attaint 
would  lie.  And  new  trials  came  in  the  room  only  of  attaints, 
as  a  more  expeditious  and  easy  remedy. 


BEARDMORE  v.   LORD  HALIFAX. 
Common  Pleas,  1763.     Sayer  on  Damages,  228. 

In  an  action  of  trespass  there  was  a  verdict  for  the  plain- 
tiff with  fifteen  hundred  pounds  damages.  Upon  a  motion 
for  a  new  trial  on  account  of  the  excessiveness  of  the  dam- 
ages, it  appeared  from  the  report  of  Pratt,  C.J.,  before 
whom  the  cause  was  tried,  that  the  defendant  had  granted  an 
illegal  warrant  against  the  plaintiff  in  consequence  of  which 
the  house  of  the  plaintiff  bad  been  entered  and  his  papers 
looked  into ;  and  that  he  had  been  carried  from  his  house 
and  confined  six  days.  The  Chief  Justice  concluded  his 
report  with  saying  that  he  did  not  think  the  damages  exces- 
sive.    A  new  trial  was  refused  ;  and  by 

Pratt,  C.J.  If  in  an  action  founded  upon  a  tort  there 
be  any  rule  by  which  the  court  may  measure  the  damages,  as 
in  an  action  of  trespass  for  destroying  a  field  of  corn,  a  new 
trial  ought  to  be  granted,  if  damages  to  a  much  larger  amount 
than  the  value  of  the  corn  are  assessed  ;  but  the  court  ought 
never  to  grant  a  new  trial  in  an  action  founded  upon  a  per- 
sonal tort,  unless  the  damages  are  such  as  do  at  the  first 
blush  appear  to  be  quite  outrageous.  Because  the  damages, 
which  do  entirely  depend  upon  the  circumstances  of  the  par- 
ticular case,  must  in  every  such  action  be  ideal  and  specula- 
tive, and  the  jury  are  the  persons  in  whom  the  power  of 
ascertaining  damages  in  all  cases  is  by  the  constitution 
vested. 


CASES  ON  DAMAGES- 


PHILLIPS   v.  LONDON   &   S.  W.  RAILWAY. 

Court  of  Appeal,  1879.     5  Q.  B.  Div.  78. 

This  was  an  appeal  by  the  defendants  from  a  decision  of 
the  Queen's  Bench  Division  directing  a  new  trial.  The  ap- 
plication was  made  on  the  ground  of  insufficiency  of  damages 
and  misdirection.1  The  jury  gave  the  plaintiff  £7000.  The 
plaintiff  moved  for  a  new  trial,  which  was  granted  by  the 
Queen's  Bench  Division  on  the  ground  that  the  amount  of 
damages  given  by  the  jury  was  so  small  as  to  show  that  they 
must  have  left  out  of  consideration  some  of  the  oircum- 
stances  which  ought  to  have  been  taken  into  account.  The 
defendants  appealed. 

James,  L.J.  In  this  case  we  are  of  opinion  that  we  can- 
not on  any  of  the  points  differ  from  the  judgment  of  the 
Queen's  Bench  Division. 

The  first  point,  which  is  a  very  important  one,  relates  to 
dissenting  from  the  verdict  of  a  jury  upon  a  matter  which, 
generally  speaking,  is  considered  to  be  within  their  exclusive 
province,  that  is  to  say,  the  amount  of  damages.  We  agree 
that  judges  have  no  right  to  overrule  the  verdict  of  a  jury  as 
to  the  amount  of  damages,  merely  because  they  take  a  differ- 
ent view,  and  think  that  if  they  had  been  the  jury  they  would 
have  given  more  or  would  have  given  less ;  still  the  verdicts 
of  juries  as  to  the  amount  of  damages  are  subject,  and  must, 
for  the  sake  of  justice,  be  subject,  to  the  supervision  of  a 
court  of  first  instance,  and  if  necessaiy  of  a  court  of  appeal 
in  this  way,  that  is  to  sa}',  if  in  the  judgment  of  the  court  the 
damages  are  unreasonably  large  or  unreasonabby  small,  then 

1  Only  so  much  of  the  case  as  involves  the  question  of  damages  is  given. 
The  plaintiff  was  a  physician  who  had  been  making  an  income  of  between 
£6000  and  £7000  a  year ;  by  negligence  of  defendants  he  had  suffered  a 
personal  injury,  the  result  of  which  was  that  there  was  no  hope  that  he 
would  ever  be  able  to  resume  his  profession,  or  even  recover  so  far  as  to 
have  any  enjoyment  of  life. 


WORSTER  v.  PROPRIETORS  OF  CANAL  BRIDGE.  9 

the  court  is  bound  to  send  the  matter  for  reconsideration 
by  another  jury.  The  Queen's  Bench  Division  came  to  the 
conclusion  in  this  case  that  the  amount  of  the  damages  was 
unreasonably  small,  and  for  the  reasons  which  were  given 
by  the  Lord  Chief  Justice,  pointing  out  certain  topics  which 
the  jury  could  not  have  taken  into  consideration.  I  am  of 
opinion,  and  I  believe  my  colleagues  are  also  of  opinion,  for 
the  same  reasons  and  upon  the  same  grounds,  that  the  dam- 
ages are  unreasonably  small,  to  what  extent  of  course  we 
must  not  speculate,  and  have  no  business  to  say.  We  are, 
therefore,  of  opinion  that  the  Queen's  Bench  Division  was 
right  in  directing  a  new  trial. 

Brett  and  Cotton,  L.J  J.,  concurred. 

Appeal  dismissed. 

WORSTER  v.  PROPRIETORS   OF   THE   CANAL 
BRIDGE. 

Massachusetts,  1835.     16  Pick.  541. 

This  was  case,  to  recover  damages  for  injuries  alleged  to 
have  been  sustained  by  the  plaintiff,  in  consequence  of  a 
defect  in  the  bridge  of  the  defendants.  The  trial  was  be- 
fore Wilde,  J.,  on  the  general  issue.  The  jury  returned  a 
verdict  in  favor  of  the  plaintiff,  for  the  sum  of  $600.  The 
defendants  thereupon  filed  a  motion  for  a  new  trial,  and 
assigned  the  following  causes:  1.  Because  the  damages 
were  excessive.1 

Wilde,  J.,  delivered  the  opinion  of  the  court.  In  regard 
to  the  first  reason  assigned  for  a  new  trial,  we  are  of  opinion, 
that  the  damages  assessed  are  not  so  excessive  and  unreason- 
able as  to  warrant  the  interference  of  the  court  in  a  matter 
which  is  peculiarly  within  the  province  of  the  jury  to  deter- 
mine. In  all  cases  where  there  is  no  rule  of  law  regulating 
the  assessment  of  damages,  and  the  amount  does  not  depend 
on  computation,  the  judgment  of  the  jury  and  not  the  opinion 

1  Only  so  much  of  the  case  as  refers  to  this  point  is  giveo- 


10  CASES  ON  DAMAGES. 

of  the  court  is  to  govern,  unless  the  damages  are  so  exces* 
sive  as  to  warrant  the  belief  that  the  jury  must  have  been 
influenced  by  partiality  or  prejudice,  or  have  been  misled  by 
some  mistaken  view  of  the  merits  of  the  case.  In  the  pres- 
ent case  the  plaintiff  was  exposed  to  the  imminent  peril  of 
his  life,  to  great  bodily  and  mental  suffering,  and  we  cannot 
sa}'  that  the  sum  assessed  by  the  jury  exceeds  a  reasonable 
compensation.  We  do  not  consider  whether  or  not  we 
should  have  assessed  the  same  amount  of  damages  if  the  case 
had  been  submitted  to  the  court  to  decide ;  for  in  a  case  like 
the  present,  men  of  sound  judgment  may  differ  not  a  little  in 
estimating  the  compensation  which  the  circumstances  of  the 
injury  would  justify  ;  and  it  is  the  judgment  of  the  juiy,  and 
not  that  of  the  court,  which  must  govern.  To  justify  the 
interposition  of  the  court,  the  damages  must  be  manifestly 
exorbitant ;  and  this  we  cannot  say  in  the  present  case. 

ROBINSON  v.  TOWN  OF  WAUPACA. 

Wisconsin,  1890.     77  Wis.  544. 

This  is  an  action  to  recover  damages  for  personal  injuries 
to  the  plaintiff,  alleged  to  have  been  caused  b}'  a  defective 
highway  in  the  defendant  town.  The  trial  resulted  in  a  ver- 
dict for  the  plaintiff,  assessing  her  damages  at  $167.  The 
plaintiff  moved  for  a  new  trial,  mainly  on  the  ground  that  the 
damages  so  assessed  are  inadequate  to  compensate  her  for  the 
injury  she  proved  she  sustained.  The  motion  was  denied, 
and  judgment  was  thereupon  entered  for  the  plaintiff,  pursu- 
ant to  the  verdict  from  which  judgment  she  appeals  to  this 
court. 

Lyon,  J.  Were  the  damages  which  the  jury  awarded  the 
plaintiff  so  inadequate  to  compensate  her  for  the  injuries  she 
sustained  that  it  was  the  duty  of  the  Circuit  Court  to  set 
aside  the  verdict  for  that  reason  ?  That  the  court  may,  and 
in  a  proper  case  should,  set  aside  a  verdict  for  inadequacy  of 
damages  and  award  a  new  trial,  is  not  questioned.  This 
court  so  held  in  Emmons  v.  Sheldon,  26  Wis.  648,  and  Whit- 


ROBINSON  v.   TOWN   OF  WAUPACA.  11 

ney  v.  Milwaukee,  65  Wis.  409.  But,  to  justify  the  interfer- 
ence of  the  court  with  the  verdict,  it  must  appear  from  the 
testimony  that  the  damages  awarded  are  so  grossly  dispro- 
portionate to  the  injury  that  in  awarding  them  the  jury  must 
have  been  influenced  by  a  perverted  judgment.  The  court 
was  able  thus  to  characterize  the  verdict  in  Emmons  v. 
Sheldon,  for  the  damages  there  awarded  were  but  $5  (which 
charged  the  plaintiff  with  the  costs  of  the  action),  although  it 
was  proved  that  the  plaintiff  suffered  a  most  serious  bodily 
injury.  There  seems  to  have  been  no  controversy  as  to  the 
extent  of  such  injury.  And  so  in  Whitney  v.  Milwaukee, 
the  undisputed  evidence  proved  that  the  plaintiff  was  so  seri- 
ously injured  that  the  damages  awarded  by  the  jury  therefor 
were  grossly  inadequate  compensation,  and  so  small  that  the 
plaintiff  was  chargeable  with  the  costs,  which  exceeded  the 
damages  awarded.  This  court  was  able  to  say  that  the  ver- 
dict was  perverse,  and  that  (quoting  from  the  opinion  deliv- 
ered by  Mr.  Justice  Orton)  "  such  a  verdict  is  trifling  with 
a  case  in  court  and  public  justice,  and  unworthy  of  twelve 
good  and  lawful  men,  and  is  justly  calculated  to  cast  odium 
on  the  jury  system  and  jury  trials." 

We  adhere  to  the  rule  established  in  those  cases.  Hence 
the  question  is,  Does  the  testimony  bring  this  case  within  the 
rule?  In  the  consideration  of  this  question  we  must  assume 
that  the  jury  found  every  fact  going  to  mitigate  or  reduce  the 
damages  which  they  could  properly  find  from  the  proofs. 
The  testimony  tends  to  show  that  the  plaintiff  was  to  some 
extent  an  invalid  before  she  was  injured,  and  that  the  pain 
and  disability  she  has  suffered  since  the  injury  should,  in 
part  at  least,  be  attributed  to  previous  ill-health.  Then  the 
circumstances  of  the  injury  and  her  condition  presently  there- 
after tend  to  show  that  the  injury  was  not  so  severe  as 
claimed.  There  is  considerable  testimon}'  of  the  above 
character,  and  we  think  it  sufficient  materially  to  mitigate 
her  claim  for  damages.  Under  the  testimony,  therefore, 
there  is  a  wide  margin  for  the  jury  in  assessing  damages. 
Probably   a  verdict   for    a    much   larger    sum    could    have 


12  CASES  ON  DAMAGES. 

been  held  not  excessive.  Perhaps,  if  the  plaintiff's  testis 
rnony  as  to  the  extent  of  her  injuries  stood  alone,  it  ought 
to  be  held  that  the  damages  are  inadequate.  But  in  view 
of  all  the  testimony,  and  of  the  fact  that  the  verdict  has 
successfully  passed  the  scrutiny  of  the  learned  Circuit  judge, 
we  do  not  feel  warranted  in  saying  that  it  is  a  perverse 
verdict.  Hence,  although  we  might  have  been  better  satis- 
fied had  a  somewhat  greater  sum  been  awarded,  we  are 
not  at  liberty  to  disturb  the  verdict. 

Br  the  Court.  —  The  judgment  of  the  Circuit  Court  is 
affirmed. 

BALTIMORE  &  OHIO  RAILROAD  v.  CARR. 

Maryland,  1889.     71  Md.  135. 

Alvey,  C.J.1  This  is  an  action  on  the  case  brought  by 
the  appellee  against  the  appellant  for  the  wrongful  refusal  of 
admission  of  the  former  to  the  cars  of  the  latter.  The  jury  was 
instructed,  that  if  they  found  for  the  plaintiff  for  the  refusal 
to  pass  him  through  the  gate,  then  he  was  entitled  to  such 
damages  as  the}'  might  find  would,  under  all  the  circumstances, 
compensate  him  for  such  refusal.  This  left  the  whole  ques- 
tion of  damages  at  large,  without  definition  by  the  court, 
to  the  discretion  of  the  jurj',  and  without  any  criterion  to 
guide  them.  What  compensation  would  embrace  —  whether 
actual  and  necessary  expenses  incurred  by  reason  of  the  re- 
fusal, or  the  mere  delay,  or  disappointment  in  pleasure,  or 
the  possible  loss  in  business  transactions,  however  remote  or 
indirect,  or  for  wounded  feelings  —  were  matters  thrown  open 
to  the  jury,  and  they  were  allowed  to  speculate  upon  them 
without  restraint.  This  is  not  justified  by  any  well-estab- 
lished rules  of  law.  In  the  case  of  Knight  v.  Egerton,  7 
Exch.  407,  where,  in  effect,  such  an  instruction  was  given, 
the  Court  of  Exchequer  held  it  to  be  wholly  insufficient,  "  and 
that  it  was  the  dut}'  of  the  judge  to  inform  the  jury  what 
was  the  true  measure  of  damages  on  the  issue,  whether  the 

1  Part  of  the  opinion  is  omitted. 


BROWNING  v.  WABASH  WESTERN  RAILWAY.         13 

point  was  taken  or  not ;  "  and  the  court  directed  a  new  trial 
because  of  the  indefinite  instruction  as  to  the  true  measure 
of  damages.  The  rule  by  which  damages  are  to  be  esti- 
mated is,  as  a  general  principle,  a  question  of  law  to  be  de- 
cided by  the  court ;  that  is  to  say,  the  court  must  decide  and 
instruct  the  jury  in  respect  to  what  elements,  and  within 
what  limits,  damages  may  be  estimated  in  the  particular 
action.  Harker  v.  Dement,  9  Gill,  7 ;  Hadley  v.  Baxendale, 
9  Exch.  341,  354.  The  simple  question  whether  damages 
have  been  sustained  by  the  breach  of  duty  or  the  violation 
of  right,  and  the  extent  of  damages  sustained  as  the  direct 
consequences  of  such  breach  of  duty  or  violation  of  right, 
are  matters  within  the  province  of  the  jury.  But  beyond 
this  juries,  as  a  general  rule,  are  not  allowed  to  intrude,  as 
by  such  intrusion  all  certainty  and  fixedness  of  legal  rule 
would  be  overthrown  and  destroyed. 

New  trial  awarded' 


BROWNING  v.   WABASH  WESTERN   RAILWAY. 

Missouri,  1894.     124  Mo.  55. 

Barclay,  J.  This  is  an  action  to  recover  statutory  dam- 
ages, on  account  of  the  death  of  plaintiff's  husband,  ascriba- 
ble  as  she  charges,  to  the  negligence  of  defendant.1 

4.  Touching  the  measure  of  damages,  the  following  expres- 
sion of  opinion,  prepared  by  my  learned  brother  Gantt,  is 
approved  and  adopted,  namely  : 

"The  instruction  on  the  measure  of  damages  is  also  as- 
sailed as  error. 

"The  instruction  was  in  these  words:  '  If  the  jury  find 
for  the  plaintiff  they  will  assess  her  damages  at  such  sum  as 
in  their  judgment  will  be  a  fair  and  just  compensation  to  her 
for  the  loss  of  her  husband,  not  exceeding  the  sum  of  $5,000.' 

"  The  defendant  asked  no  instruction  on  the  measure  of 
damages  whatever.     No  attempt  was  made  by  it  to  point  out 

1  Part  of  the  opinion  is  omitted. 


14  CASES  ON  DAMAGES. 

the  proper  elements  of  damage  in  such  cases  or  to  modify  the 
general  language  of  the  instruction. 

"The  instruction  is  not  erroneous  in  its  general  scope; 
and  if,  in  the  opinion  of  counsel  for  defendant,  it  was  likely 
to  be  misunderstood  by  the  jury,  it  was  the  duty  of  the  coun- 
sel to  ask  the  modifications  and  explanations,  in  an  instruc- 
tion embodying  its  views. 

"  The  court  is  not  required  in  a  civil  case  to  instruct  on  all 
questions,  whether  suggested  or  not,  and  as  there  is  nothing 
in  the  amount  of  the  verdict  to  indicate  that  the  jury  were 
actuated  by  any  improper  motive  in  their  assessment,  the 
general  nature  of  the  instruction  is  no  ground  for  reversal." 


CHAPTER  n. 

EXEMPLARY   DAMAGES. 


HUCKLE  v.  MONEY. 
Common  Pleas,  1763.    2  Wils.  205. 

Pratt,  L.C.J.1  In  all  motions  for  new  trials,  it  is  as  ab- 
solutely necessary  for  the  court  to  enter  into  the  nature  of  the 
cause,  the  evidence,  facts,  and  circumstances  of  the  case,  as 
for  a  jury  ;  the  law  has  not  laid  down  what  shall  be  the  meas- 
ure of  damages  in  actions  of  tort ;  the  measure  is  vague  and 
uncertain,  depending  upon  a  vast  variety  of  causes,  facts,  and 
circumstances ;  torts  or  injuries  which  may  be  done  by  one 
man  to  another  are  infinite  ;  in  cases  of  criminal  conversation, 
battery,  imprisonment,  slander,  malicious  prosecutions,  &c, 
the  state,  degree,  quality,  trade,  or  profession  of  the  party 
injured,  as  well  as  of  the  person  who  did  the  injury,  must  be, 
and  generally  are,  considered  by  a  jury  in  giving  damages ; 
the  few  cases  to  be  found  in  the  books  of  new  trials  for  torts 
show  that  courts  of  justice  have  most  commonly  set  their 
faces  against  them ;  and  the  courts  interfering  in  these  cases 
would  be  laying  aside  juries  ;  before  the  time  of  granting  new 
trials,  there  is  no  instance  that  the  judges  ever  intermeddled 
with  the  damages. 

I  shall  now  state  the  nature  of  this  case,  as  it  appeared 
upon  the  evidence  at  the  trial ;  a  warrant  was  granted  by  Lord 
Halifax,  Secretary  of  State,  directed  to  four  messengers,  to 
apprehend  and  seize  the  printers  and  publishers  of  a  paper 
called  the  North  Briton,  number  45,  without  any  information 

1  The  opinion  of  the  Lord  Chief  Justice  alone  is  given,  as  it  suffi- 
ciently states  the  case. 


16  CASES  ON  DAMAGES. 

or  charge  laid  before  the  Secretary  of  State,  previous  to  the 
granting  thereof^  and  without  naming  any  person  whatsoever 
in  the  warrant ;  Carrington,  the  first  of  the  messengers  to 
whom  the  warrant  was  directed,  from  some  private  intelli- 
gence he  had  got  that  Leech  was  the  printer  of  the  North 
Briton,  number  45,  directed  the  defendant  to  execute  the 
warrant  upon  the  plaintiff  (one  of  Leech's  journeymen),  and 
took  him  into  custody  for  about  six  hours,  and  during  that 
time  treated  him  well ;  the  personal  injury  done  to  him  was 
very  small,  so  that  if  the  jury  had  been  confined  by  their  oath 
to  consider  the  mere  personal  injury  onl}",  perhaps  £20  dam- 
ages would  have  been  thought  damages  sufficient ;  but  the 
small  injury  done  to  the  plaintiff,  or  the  inconsiderableness  of 
his  station  and  rank  in  life,  did  not  appear  to  the  jury  in  that 
striking  light,  in  which  the  great  point  of  law  touching  the 
liberty  of  the  subject  appeared  to  them  at  the  trial ;  they  saw 
a  magistrate  over  all  the  king's  subjects  exercising  arbitrary 
power,  violating  Magna  Charta,  and  attempting  to  destroy 
the  libert}'  of  the  kingdom,  by  insisting  upon  the  legality  of 
this  general  warrant  before  them ;  they  heard  the  king's 
counsel,  and  saw  the  Solicitor  of  the  Treasury,  endeavoring 
to  support  and  maintain  the  legality  of  the  warrant  in  a 
tyrannical  and  severe  manner ;  =these  are  the  ideas  which 
struck  the  jury  on  the  trial,  and  I  think  they  have  done  right 
in  giving  exemplary  damages ; 1  to  enter  a  man's  house  by 
virtue  of  a  nameless  warrant,  in  order  to  procure  evidence,  is 
worse  than  the  Spanish  Inquisition  ;  a  law  under  which  no 
Englishman  would  wish  to  live  an  hour ;  it  was  a  most  dar- 
ing public  attack  made  upon  the  liberty  of  the  subject :  I 
thought  that  the  29th  chapter  of  Magna  Charta,  Nullus  liber 

1  In  Sayer  on  Damages,  p.  220,  the  Lord  Chief  Justice  is  reported  to 
have  added :  "  Wherever  an  injury  is  done  under  the  color  of  authority, 
as  if  an  officer  empowered  to  press  exceed  the  authority  given  him  by 
the  press  warrant ;  or  if  a  master  of  a  ship  abuse  the  power  by  law 
vested  in  him  over  the  sailors  under  his  command  ;  or  if,  as  in  the  present 
case,  a  person  is  arrested  upon  a  general  warrant,  the  jury  in  assessing 
damages  are  not  confined  to  the  damages  which  have  been  actually  sus- 
tained, but  ought  to  assess  exemplary  damages." 


GODDARD  v.   GRAND  TRUNK  RAILWAY.      17 

homo  capiatur  vel  imprisonetur,  &c,  nee  super  eum  ibimus, 
&c,  nisi  per  legale  judicium  parium  suorum  vel  per  legem 
terrce,  <£c,  which  is  pointed  against  arbitrary  power,  was  vio- 
lated. I  cannot  say  what  damages  I  should  have  given  if  I 
had  been  upon  the  jury  ;  but  I  directed  and  told  thein  they 
were  not  bound  to  any  certain  damages,  against  the  Solicitor- 
General's  argument.  Upon  the  whole,  I  am  of  opinion  the 
damages  are  not  excessive  ;  and  that  it  is  very  dangerous  for 
the  judges  to  intermeddle  in  damages  for  torts ;  it  must  be  a 
glaring  case  indeed  of  outrageous  damages  in  a  tort,  and  which 
all  mankind  at  first  blush  must  think  so,  to  induce  a  court  to 
grant  a  new  trial  for  excessive  damages. 


GODDARD  v.  GRAND  TRUNK  RAILWAY. 

Maine,  1869.     57  Me.  202. 

Walton,  J.1  It  appears  in  evidence  that  the  plaintiff  was 
a  passenger  in  the  defendants'  railway  car  ;  that,  on  request, 
he  surrendered  his  ticket  to  a  brakeman  employed  on  the 
train,  who,  in  the  absence  of  the  conductor,  was  authorized  to 
demand  and  receive  it ;  that  the  brakeman  afterwards  ap- 
proached the  plaintiff,  and,  in  language  coarse,  profane,  and 
grossly  insulting,  denied  that  he  had  either  surrendered  or 
shown  him  his  ticket;  that  the  brakeman  called  the  plaintiff 
a  liar,  charged  him  with  attempting  to  avoid  the  payment  of 
his  fare,  and  with  having  done  the  same  thing  before,  and 
threatened  to  split  his  head  open  and  spill  his  brains  right 
there  on  the  spot ;  that  the  brakeman  stepped  forward  and 
placed  his  foot  upon  the  seat  on  which  the  plaintiff  was  sit- 
ting, and,  leaning  over  the  plaintiff,  brought  his  fist  close 
down  to  his  face,  and,  shaking  it  violently,  told  him  not  to 
yip,  if  he  did  he  would  spot  him,  that  he  was  a  damned  liar, 
that  he  never  handed  him  his  ticket,  that  he  did  not  believe 
he  paid  his  fare  either  way  ;  that  this  assault  was  continued 

1  Tart  of  the  opinion  only  is  given. 
2 


18  CASES   ON   DAMAGES. 

some  fifteen  or  twenty  minutes,  and  until  the  whistle  sounded 
for  the  next  station  ;  that  there  were  several  passengers  pres- 
ent in  the  car,  some  of  whom  were  ladies,  and  that  they  were 
all  strangers  to  the  plaintiff ;  that  the  plaintiff  was  at  the  time 
in  feeble  health,  and  had  been  for  some  time  under  the  care 
of  a  physician,  and  at  the  time  of  the  assault  was  reclining 
languidly  in  his  seat;  that  he  had  neither  said  nor  done  any- 
thing to  provoke  the  assault ;  that,  in  fact,  he  had  paid  his 
fare,  had  received  a  ticket,  and  had  surrendered  it  to  this  very 
brakeman,  who  delivered  it  to  the  conductor  only  a  few  min- 
utes before,  by  whom  it  was  afterwards  produced  and  identi- 
fied ;  that  the  defendants  were  immediately  notified  of  the 
misconduct  of  the  brakeman,  but,  instead  of  discharging  him, 
retained  him  in  his  place  ;  that  the  brakeman  was  still  in  the 
defendants'  employ  when  the  case  was  tried,  and  was  present 
in  court  during  the  trial,  but  was  not  called  as  a  witness,  and 
no  attempt  was  made  to  justify  or  excuse  his  conduct.   .  .  . 

What  is  the  measure  of  relief  which  the  law  secures  to  the 
injured  party ;  or,  in  other  words,  can  he  recover  exemplary 
damages?  We  hold  that  he  can.  The  right  of  the  jury  to 
give  exemplary  damages  for  injuries  wantonly,  recklessly,  or 
maliciously  inflicted,  is  as  old  as  the  right  of  trial  by  jury 
itself;  and  is  not,  as  many  seem  to  suppose,  an  innovation 
upon  the  rules  of  the  common  law.  It  was  settled  in  England 
more  than  a  century  ago.  .  .  . 

But  it  is  said  that  if  the  doctrine  of  exemplary  damages 
must  be  regarded  as  established  in  suits  against  natural  per- 
sons for  their  own  wilful  and  malicious  torts,  it  ought  not  to 
be  applied  to  corporations  for  the  torts  of  their  servants,  espe- 
cially where  the  tort  is  committed  by  a  servant  of  so  low  a 
grade  as  a  brakeman  on  a  railway  train,  and  the  tortious 
act  was  not  directly  nor  impliedly  authorized  nor  ratified  by 
the  corporation ;  and  several  cases  are  cited  by  the  defend- 
ants' counsel,  in  which  the  courts  seem  to  have  taken  this 
view  of  the  law  ;  but  we  have  carefully  examined  these  cases, 
and  in  none  of  them  was  there  any  evidence  that  the  servant 
acted  wantonly  or  maliciously ;  they  were  simply  cases  of 


GODDARD  v.   GRAND  TRUNK  RAILWAY.      19 

mistaken  duty  ;  and  what  these  same  courts  would  have  done 
if  a  case  of  such  gross  and  outrageous  insult  had  been  before 
them  as  is  now  before  us,  it  is  impossible  to  say  ;  and  loug 
experience  has  shown  that  nothing  is  more  dangerous  than  to 
rely  upon  the  abstract  reasoning  cf  courts,  when  the  cases 
before  them  did  not  call  for  the  application  of  the  doctrines 
which  their  reasoning  is  intended  to  establish. 

We  have  given  to  this  objection  much  consideration,  as  it 
was  our  duty  to  do,  for  the  presiding  judge  declined  to  in- 
struct the  jury  that  if  the  acts  and  words  of  the  defendants' 
servant  were  not  directly  nor  impliedly  authorized  nor  ratified 
by  the  defendant,  the  plaintiff  could  not  recover  exemplary 
damages.  We  confess  that  it  seems  to  us  that  there  is  no 
class  of  cases  where  the  doctrine  of  exemplary  damages  can 
be  more  beneficially  applied  than  to  railroad  corporations  in 
their  capacity  of  common  carriers  of  passengers  ;  and  it 
might  as  well  not  be  applied  to  them  at  all  as  to  limit  its 
application  to  cases  where  the  servant  is  directly  or  impliedly 
commanded  by  the  corporation  to  maltreat  and  insult  a  pas- 
senger, or  to  cases  where  such  an  act  is  directly  or  impliedly 
ratified  ;  for  no  such  cases  will  ever  occur.  A  corporation  is 
an  imaginary  being.  It  has  no  mind  but  the  mind  of  its  ser- 
vants ;  it  has  no  voice  but  the  voice  of  its  servants;  and  it 
has  no  hands  with  which  to  act  but  the  hands  of  its  servants. 
All  its  schemes  of  mischief,  as  well  as  its  schemes  of  public 
enterprise,  are  conceived  by  human  minds  and  executed  by 
human  hands  ;  and  these  minds  and  hands  are  its  servants' 
minds  and  hands.  All  attempts,  therefore,  to  distinguish 
between  the  guilt  of  the  servant  and  the  guilt  of  the  corpo- 
ration, or  the  malice  of  the  servant  and  the  malice  of  the 
corporation,  or  the  punishment  of  the  servant  and  the  punish- 
ment of  the  corporation,  is  sheer  nonsense;  and  only  tends 
to  confuse  the  mind  and  confound  the  judgment.  Neither 
guilt,  malice,  nor  suffering  is  predicable  of  this  ideal  exist- 
ence, called  a  corporation.  And  yet  under  cover  of  its  name 
and  authority  there  is,  in  fact,  as  much  wickedness,  and  as 
much  that  is  deserving  of  punishment,  as  can  be  found  any- 


20  CASES  ON  DAMAGES. 

where  else.  And  since  these  ideal  existences  can  neither  be 
hung,  imprisoned,  whipped,  or  put  in  stocks,  —  since,  in  fact, 
no  corrective  influence  can  be  brought  to  bear  upon  them 
except  that  of  pecuniary  loss,  —  it  does  seem  to  us  that  the 
doctrine  of  exemplary  damages  is  more  beneficial  in  its  appli- 
cation to  them  than  in  its  application  to  natural  persons.  If 
those  who  are  in  the  habit  of  thinking  that  it  is  a  terrible 
hardship  to  punish  an  innocent  corporation  for  the  wicked- 
ness of  its  agents  and  servants,  will  for  a  moment  reflect 
upon  the  absurdity  of  their  own  thoughts,  their  anxiety  will 
be  cured.  Careful  engineers  can  be  selected  who  will  not  run 
their  trains  into  open  draws  ;  and  careful  baggage  men  can 
be  secured,  who  will  not  handle  and  smash  trunks  and  band- 
boxes, as  is  now  the  universal  custom ;  and  conductors  and 
brakemen  can  be  had  who  will  not  assault  and  insult  passen- 
gers ;  and  if  the  courts  will  only  let  the  verdicts  of  upright 
and  intelligent  juries  alone,  and  let  the  doctrine  of  exemplary 
damages  have  its  legitimate  influence,  we  predict  these  great 
and  growing  evils  will  be  very  much  lessened,  if  not  entirely 
cured.  There  is  but  one  vulnerable  point  about  these  ideal 
existences,  called  corporations  ;  and  that  is,  the  pocket  of  the 
monej'ed  power  that  is  concealed  behind  them  ;  and  if  that  is 
reached  they  will  wince.  When  it  is  thoroughly  understood 
that  it  is  not  profitable  to  employ  careless  and  indifferent 
agents,  or  reckless  and  insolent  servants,  better  men  will  take 
their  places,  and  not  before. 

It  is  our  judgment,  therefore,  that  actions  against  corpo- 
rations, for  the  wilful  and  malicious  acts  of  their  agents  and 
servants  in  executing  the  business  of  the  corporation,  should 
not  form  exceptions  to  the  rule  allowing  exemplary  damages. 
On  the  contrary,  we  think  this  is  the  very  class  of  cases,  of 
all  others,  where  it  will  do  the  most  good,  and  where  it  is 
most  needed.  And  in  this  conclusion  we  are  sustained  by 
several  of  the  ablest  courts  in  the  country. 

Motion  and  exceptions  overruled, 

Tapley,  J.,  dissented. 


MURPHY  v.  HOBBS.  21 

MURPHY  v.  HOBBS. 

Colorado,  1884.     7  Col.  541. 

Helm,  J.  This  is  a  civil  action,  brought  to  recover  dam- 
ages for  malicious  prosecution  and  false  imprisonment. 
Plaintiff  procured  a  verdict,  and  judgment  was  duly  entered 
thereon.  Defendant  prosecutes  this  appeal,  and  assigns  in 
support  thereof  numerous  errors.  The  most  important  of 
these  assignments  is  one  which  relates  to  the  measure  of 
damages  adopted  in  the  court  below. 

Upon  this  subject  the  following  instruction  was  there 
given:  "That  the  measure  of  damages  in  an  action  for 
malicious  prosecution  is  not  confined  alone  to  actual  pecuni- 
ary loss  sustained  by  reason  thereof;  but  if  it  is  believed, 
from  the  evidence,  that  the  arrest  and  imprisonment  stated 
in  the  complaint  were  without  probable  cause,  then  the  jury 
may  award  damages  to  plaintiff  to  indemnify  him  for  the 
peril  occasioned  to  him  in  regard  to  personal  liberty,  for  in- 
jury to  his  person,  liberty,  feelings  and  reputation,  and  as  a 
punishment  to  defendant  in  such  further  sum  as  they  shall 
deem  just." 

-  B}7  the  assignment  of  error  and  argument  challenging  the 
correctness  of  this  instruction,  we  are  called  upon  to  consider 
the  following  question,  viz. :  Can  damages,  as  a  punishment, 
be  recovered  in  cases  like  this? 

The  rule  allowing,  under  certain  circumstances,  in  civil 
actions  based  upon  torts,  exemplary,  punitive,  or  vindictive 
damages,  for  the  purpose  of  punishing  the  defendant,  has 
taken  deep  root  in  the  law.  It  has  the  sanction  of  learned 
courts  and  law  writers,  among  the  latter  Mr.  Sedgwick  ;  and 
its  abrogation  should  be  favored  only  upon  the  most  weighty 
consideration.  But  we  find  denying  its  correctness,  Professor 
Greenleaf  and  several  courts  of  the  highest  respectability. 

As  we  shall  presently  see,  the  question  is  not  conclusively 


22  CASES  ON  DAMAGES. 

res  judicata  in  Colorado.  We  therefore  feel  at  liberty  to 
inquire  into  the  reasons  urged  against  the  doctrine. 

Were  this  subject  now  presented  to  the  various  courts  of  the 
country  for  the  first  time,  we  have  little  doubt  as  to  what  the 
verdict  would  be ;  the  propriety  of  adhering  exclusively  to 
the  rule  of  compensation  appears,  upon  careful  investigation, 
with  striking  clearness.  But  many  of  the  courts,  like  that  of 
Wisconsin,  while  expressing  strong  disapprobation  of  the  doc- 
trine "  inherited,"  and  declaring  it  "a  sin  against  sound 
judicial  principle,"  feel  constrained  to  preserve  it,  on  account 
of  precedent  in  their  respective  States,  and  the  "  current  of 
authorit}-  elsewhere."     Brown  v.  Swineford,  44  Wis.  282. 

Perhaps  the  most  impressive  objection  to  allowing  damages 
as  a  punishment  in  cases  like  the  one  at  bar  is  that  which 
relates  to  dual  prosecution  for  a  single  tort.  Our  State  Con- 
stitution declares  that  no  one  shall  be  twice  put  in  jeopardy 
for  the  same  offence.  A  second  criminal  prosecution  for  the 
same  act  after  acquittal,  or  conviction  and  punishment  there- 
for, is  something  which  no  English  or  American  lawj-er  would 
defend  for  a  moment.  But  here  is  an  instance  where 
practically  this  wrong  is  inflicted.  The  fine  awarded  as  a 
punishment  in  the  civil  action  does  not  prevent  indictment 
and  prosecution  in  a  criminal  court.  On  the  other  hand,  it 
has  been  held  that  evidence  of  punishment  in  a  criminal  suit 
is  not  admissible  even  in  mitigation  of  exemplary  damages  in 
a  civil  action.  Cook  v.  Ellis,  6  Hill,  466  ;  Edwards  v.  Leavitt, 
46  Vt.  126. 

Courts  attempt  to  explain  away  the  apparent  conflict  with 
the  constitutional  inhibition  above  mentioned ;  the}'  sa}T 
that  the  language  there  used  refers  exclusively  to  criminal 
procedure  and  cannot  include  civil  actions.  Brown  v.  Swine- 
ford, supra.  But  this  position  amounts  to  a  complete  sur- 
render of  the  evident  spirit  and  intent  of  that  instrument. 
When  the  convention  framed,  and  when  the  people  adopted 
the  Constitution,  both  understood  the  purpose  of  this  clause 
to  be  the  prevention  of  double  prosecutions  for  the  same 
offence.     Yet  under  the  rule  allowing  exemplary  damages. 


MURPHY  v.  HOBBS.  23 

not  only  may  two  prosecutions,  but  also  two  convictions  and 
punishments,  be  had.  "What  difference  does  it  make  to  the 
accused,  so  far  as  this  question  is  concerned,  that  one 
prosecution  takes  the  form  of  a  civil  action,  in  which 
he  is  called  defendant?  He  is  practically  harassed  with 
two  prosecutions  and  subjected  to  two  convictions  :  while 
no  hypothesis,  however  ingenious,  can  cloud  in  his  mind 
the  palpable  fact  that  for  the  same  tort  he  suffers  two 
punishments. 

An  effort  has  been  made  to  mitigate  the  undeniable  hard- 
ship and  injustice  by  declaring  that  juries  in  the  second 
prosecution,  whether  it  be  civil  or  criminal  in  form,  may 
consider  the  punishment  already  inflicted.  But  both  reason 
and  authority  conclusively  show  that  this  proposition  is  illu- 
sory ;  that  the  application  of  such  a  rule  is  impracticable ; 
and  that  the  attempt  to  apply  it,  while  producing  confusion, 
would  not  effectively  accomplish  the  purpose  intended. 

A  second  weighty  objection  to  the  rule  under  discussion 
relates  to  procedure.  It  is  doubtful  if  another  instance  can 
be  found  within  the  whole  range  of  English  or  American 
jurisprudence,  where  the  distinctions  between  civil  and  crim- 
inal procedure  are  so  completely  ignored.  Plaintiff  sues  for 
damages  arising  from  the  injury  done  to  himself.  His  com- 
plaint or  declaration  is  framed  with  a  view  to  compensation 
for  a  purely  private  wrong :  it  need  not  be  under  oath, 
and  does  not  inform  defendant  that  he  is  to  be  tried  for  a 
public  offence.  The  summons  makes  no  mention  of  punish- 
ment;  it  simpby  commands  defendant  to  appear  and  answer 
in  damages  for  the  private  injury  inflicted  upon  plaintiff. 
When  the  cause  is  called  for  trial,  no  issue  upon  a  public 
criminal  charge  is  fairly  presented  by  the  pleadings. 

A  trial  and  conviction  are  had,  and  punishment  b}T  fine  is 
inflicted,  without  indictment  or  sworn  information. 

The  rules  of  evidence  peculiarly  applicable  in  criminal 
prosecutions  are  rejected. 

The  doctrine  of  reasonable  doubt  is  replaced  by  the  rule 
controlling  in  civil  actions,  and  a  mere  preponderance  in  the 


2-4  CASES   ON   DAMAGES. 

weight  of  testimony  warrants  conviction  ;  defendant  is  com- 
pelled to  testify  against  himself,  and  such  forced  testimony 
may  produce  the  verdict  under  which  he  is  punished  ;  deposi- 
tions may  be  read  against  him,  and  thus  the  right  of  meeting 
adverse  witnesses  face  to  face  be  denied. 

The  law  fixes  a  maximum  punishment  for  criminal  offences, 
and  in  this  State  the  presiding  judge  determines  the  extent 
thereof,  where  a  discretion  is  given ;  but  under  the  rule  we 
are  considering,  the  jury  are  entirely  free  from  control,  except 
through  the  court's  power — always  unwillingly  exercised  — 
to  set  aside  the  verdict :  they  may,  for  an  offence  which  is 
punishable  under  criminal  statutes  by  $100  fine  at  most,  award 
as  a  punishment  man}*  times  that  sum. 

And  finally,  when  the  defendant  has  been  punished  in  the 
civil  action,  he  is  denied  the  privilege  of  pleading  such  expi- 
ation in  bar  of  a  criminal  prosecution  for  the  same  offence. 
He  can  hope  for  no  executive  clemency  in  the  civil  suit ;  and 
if  imprisoned  upon  the  second  conviction,  under  the  authori- 
ties, habeas  corpus  does  not  lie  to  aid  him. 

The  incongruities  of  this  proceeding  are  not  confined  to  the 
criminal  branch  of  the  law.  Civil  actions  are  instituted  for 
the  purpose  of  redressing  private  wrongs ;  it  is  the  aim  of 
civil  jurisprudence  to  mete  out  as  nearly  exact  justice  as  pos- 
sible, between  contending  litigants ;  there  ought  to  be  no 
disposition  to  take  from  the  defendant  or  give  to  the  plaintiff 
more  than  equity  and  justice  require. 

Yet  under  this  rule  of  damages  these  principles  are  forgot- 
ten, and  judicial  machinery  is  used  for  the  avowed  purpose  of 
giving  plaintiff  that  to  which  he  has  no  shadow  of  right.  He 
recovers  full  compensation  for  the  injury  to  his  person  or 
property ;  for  all  direct  and  proximate  losses  occasioned  by 
the  tort ;  for  the  physical  pain,  if  any,  inflicted  ;  for  his  men- 
tal agon}-,  lacerated  feelings,  wounded  sensibilities  ;  and  then, 
in  addition  to  the  foregoing,  he  is  allowed  damages,  which 
are  awarded  as  a  punishment  of  defendant  and  example  to 
others.  Who  will  undertake  to  give  a  valid  reason  why 
plaintiff,  after  being  fully   paid    for  all  the  injury   inflicted 


MURrHY  v.   HOBBS.  25 

upon  his  property,  body,  reputation,  and  feelings,  should 
still  be  compensated,  above  and  beyond,  for  a  wrong  commit- 
ted against  the  public  at  large?  The  idea  is  inconsistent 
with  sound  legal  principles,  and  should  never  have  found  a 
lodgment  in  the  law. 

The  reflecting  lawyer  is  naturally  curious  to  account  for  this 
"  heresy  "  or  "  deformity,"  as  it  has  been  termed.  Able  and 
searching  investigations,  made  by  both  jurist  and  writer,  dis- 
close the  following  facts  concerning  it,  viz. :  That  it  was 
entirely  unknown  to  the  civil  law ;  that  it  never  obtained  a 
foothold  in  Scotland ;  that  it  finds  no  real  sanction  in  the 
writings  of  Blackstone,  Hammond,  Comyns,  or  Ruther- 
forth  ;  that  it  was  not  recognized  in  the  earlier  English  cases ; 
that  the  Supreme  Courts  of  New  Hampshire,  Massachusetts, 
Indiana,  Iowa,  Nebraska,  Michigan,  and  Georgia  have  re- 
jected it  in  whole  or  in  part ;  that  of  late  other  States  have 
falteringly  retained  it  because  "  committed"  so  to  do;  that 
a  few  years  ago  it  was  correcUy  said,  "  At  last  accounts  the 
Court  of  Queen's  Bench  was  still  sitting  hopelessly  involved 
in  the  meshes  of  what  Mr.  Justice  Qnain  declai'ed  to  be 
'  utterly  inconsistent  propositions.' "  And  that  the  rule  is 
comparatively  modern,  resulting,  in  all  probability,  from  a 
misconception  of  impassioned  language  and  inaccurate  ex- 
pressions used  by  judges  in  some  of  the  earlier  English  cases. 

See  Professor  Greenleafs  response  to  Mr.  Sedgwick's 
criticism  of  the  former's  views  on  this  subject,  2  Greenl. 
Ev.  235  et  seq. ;  also  the  opinion  of  the  court,  delivered  by 
Mr.  Justice  Foster,  in  Fay  v.  Parker,  53  N.  H.  342.1 

It  has  been  with  no  little  reluctance  that  we  have  arrived 
at  the  foregoing  conclusion  as  to  the  doctrine  of  punitive  or 
exemplary  damages.  The  persuasive  reasons  and  strong 
array  of  authorities  in  support  of  the  rule,  the  corresponding 
convictions  of  a  large  part  of  the  bench  and  bar  of  the  State, 
and  the  confusion  that  may  exist  for  a  time,  have  impelled 
us  to  the  most  careful  and  conservative  deliberation.  But 
we  feel  that  the  doctrine  of  compensation  as  explained  is 
1  Part  of  the  opinioa  is  omitted. 


26  CASES   ON  DAMAGES. 

more  in  consonance  with  the  reason,  the  logic,  the  science 
of  the  law  ;  that  it  is  more  in  harmony  with  the  dictates  of 
equity  and  justice,  and  that  the  tendency  of  the  courts  and 
writers  is  favorable  to  its  exclusive  adoption,  or,  more  cor- 
rectly speaking,  re-adoption.  We  deem  it  wiser  to  accept 
and  declare  the  rule  now  than  to  resist  for  a  time  and  ulti- 
mately be  compelled  to  do  so,  when  the  confusion  produced 
would  be  tenfold  greater  than  at  present  is  possible. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a 
new  trial.  Reversed. 


HAINES  v.  SCHULTZ. 

New  Jersey  Supreme  Court,  18S8.     50  N.  J.  L.  481. 

Garrison,  J.  The  defendant  below,  who  is  the  proprietor 
of  the  Morning  Call,  was  sued  in  libel  for  uttering  the  fol- 
lowing language  of  and  concerning  the  plaintiff  : 

"HOUSE   ROBBED. 
"a  young  lady  boarder  supposed  to  know  something  about  it. 

"  Last  night,  while  Mr.  and  Mrs.  Richard  Krowley  were  at 
Little  Coney  Island,  their  house,  No.  3  Hamburgh  Avenue, 
was  entered  by  some  one  who  got  away  with  a  considerable 
amount  of  clothing.  Mr.  Krowley  is  of  the  opinion  that  a 
young  lady  boarder  named  Mamie  Schultz  knows  something 
about  the  theft.  The  girl  has  been  a  boarder  at  the  house  for 
about  seven  weeks  ;  and  according  to  Dick's  statement  Mamie 
had  a  number  of  admirers,  and  on  several  occasions  she  has 
stayed  out  late  at  nights,  and  no  later  than  last  Sunday  night 
she  climbed  through  the  window  of  Mr.  and  Mrs.  Krowley's 
sleeping  apartments,  and  Dick  is  of  the  opinion  that  she 
gained  an  entrance  through  the  same  window  last  night.  On 
entering  the  house  Mrs.  Krowley  discovered  a  bureau  drawer 
and  a  clothes  closet  open,  and  to  her  surprise  found  that  the 
house  had  been  ransacked  and  a  large  number  of  pieces  of 
her  underclothing,  together  with  ribbons  and  other  articles, 


HAINES   v.   SCHULTZ.  27 

were  missing.  Dick  visited  the  police  station  and  notified 
Captain  Bimson  who  advised  him  to  go  before  the  recorder 
this  morning  and  make  a  complaint." 

The  testimony  shows  that  this  article  was  written  by  a 
reporter  in  the  employ  of  the  defendant,  and  that  it  was 
inserted  in  the  paper  without  defendant's  knowledge,  his  first 
intimation  of  it  being  the  service  upon  him  of  the  declaration 
in  this  cause. 

No  special  damages  were  shown. 

The  plaintiff  recovered  a  substantial  verdict  against  de- 
fendant. 

Five  exceptions  taken  by  defendant  at  the  trial  are  the 
subject  of  as  many  assignments  of  error. 

The  first  is  upon  the  refusal  of  the  court  to  order  a  non- 
suit at  the  close  of  plaintiff's  case,  for  alleged  failure  of  proof. 
This  exception  may  be  dismissed  with  the  remark  that  the 
question  as  to  whether  the  language  published  tended  to  dis- 
grace the  plaintiff,  was  properly  left  to  the  jury. 

The  other  assignments  are  based  upon  exceptions  to  the 
charge  of  the  court,  and  are  addressed  to  that  portion  of  the 
charge  on  which  the  law  as  to  exemplary  damages  is  stated. 

The  fourth  assignment  is  as  follows  : 

"But  the  defendant  says,  'I  personally  had  no  hand  in 
this.'  That  is  true,  but  it  appears  that  Mr.  Keegan,  his 
reporter,  wrote  it  and  had  it  inserted  in  the  newspaper,  and 
that  from  the  time  it  was  written  up  to  the  present  day  the 
defendant  has  never  had  a  word  of  blame  for  Mr.  Keegan, 
and  Mr.  Keegan  still  remains  in  his  employ.  So  far  as  ap- 
pears, his  conduct  is  approved  by  his  employer.  There  is 
nothing  in  the  case  to  show  that  it  is  disapproved.  If  yon 
believe,  then,  that  Mr.  Keegan's  conduct  is  approved  by  his 
employer  in  this  matter,  you  have  a  right  to  see  what  Mr. 
Keegan's  conduct  was  upon  this  question  of  punishment." 

This  language  occurs  in  the  charge  of  the  court  after  the 
rules  for  the  admeasurement  of  compensatory  damages  have 
been  announced  to  the  jury. 

The  general  subject  of  exemplary  damages  is  introduced 


28  CASES   ON  DAMAGES. 

with  the  following  remark  :  "  But  when  3-011  have  determined 
what  sum  you  will  award  her  for  compensation,  you  ask  your- 
self, '  Will  that  sum  punish  the  defendant  adequately  for  his 
conduct?'  You  turn  then  to  his  conduct  and  see  what  it  is, 
whether  it  will  call  for  any  punishment  beyond  what  the  sum 
that  may  be  awarded  Mamie  Schultz  as  compensation  will  in- 
flict." Then  follows  a  series  of  instructions  as  to  the  allow- 
ance of  punitive  damages,  one  of  which  is  the  exception 
under  consideration. 

It  will  be  noticed  that  the  proposition  laid  down  by  the 
court  is  not  alone  that  the  defendant  may  be  visited  with  ex- 
emplary damages  for  language  inserted  in  his  paper,  although 
without  his  knowledge  or  consent ;  but  that  the  imposition  of 
punishment  in  damages  will  be  controlled  by  the  same  con- 
siderations which  fix  his  liability  for  the  publication,  unless 
the  defendant  adduces  proof  of  his  cfrsapproval  of  the  libellous 
article.  In  other  words,  that  the  defendant  maybe  mulcted 
in  punitive  damages  upon  the  same  proof  which  established 
his  liability  for  compensatory  damages,  unless  he  shows  or  it 
appears  that  he  disapproved  of  the  act  of  his  subordinate. 

The  liability  of  the  defendant  to  respond,  both  in  compen- 
satory and  exemplary  damages,  in  a  proper  state  of  the  evi- 
dence, is  not  questioned.  It  is  the  proposal  to  relieve  the 
plaintiff  of  the  burden  of  proof  and  to  transfer  it  to  the 
defendant  that  invites  discussion. 

Proprietors  of  newspapers  are  unquestionably  liable  in  law 
for  whatever  appears  in  their  columns.  Libellous  publication 
is  a  wrongful  act ;  and  when  to  a  wrongful  act  we  add  testi- 
mony from  which  a  wrongful  motive  can  be  inferred,  punitive 
damages  may  be  inflicted. 

But  the  maxim  respondeat  superior  is  a  rule  of  limitation 
as  well  as  of  liability.  If  a  principal  must,  on  the  one  hand, 
answer  for  his  agent's  wrong-doing,  on  the  other  hand  his 
liability  is  circumscribed  by  the  scope  of  his  agent's  employ- 
ment, unless  there  be  proof  of  a  ratification  by  him.  of  his 
agent's  misconduct. 

No  rule  of  law  is  better  established  than  this. 


HAINES   «;.   SCHULTZ.  29 

The  same  principle  applies,  and  with  equal  force,  to  the 
doctrine  of  exemplary  damages. 

Without  stopping  to  review  the  history  of  this  class  of 
so-called  damages,  it  is  sufficient  to  say  that  the  right  to  award 
them  rests  primarily  upon  the  single  ground  —  wrongful 
motive.  The  ingrafting  of  this  notion  on  to  personal  suits 
has  resulted  in  an  anomalous  rule,  the  doctrine  of  punitive 
damages  being  a  sort  of  hybrid  between  a  display  of  ethical 
indignation  and  the  imposition  of  a  criminal  fine.  But, 
whether  we  regard  it  in  the  one  light  or  the  other,  it  is  the 
wrongful  personal  intention  to  injure  that  calls  forth  the  pen- 
alty. To  this  wrongful  intent  knowledge  is  an  essential  pre- 
requisite. But  in  legal  contemplation  previous  intent  is 
presumed  from  ratification,  and  e  converso  proof  of  ratifica- 
tion must  be  made  where  a  previous  intent  is  not  presumed. 

The  learned  judge  correctly  apprehended  this  rule  when  he 
placed  the  defendant's  liability  to  punishment  in  damages 
upon  the  ground  of  his  implied  approval  of  his  employee's 
misconduct.  And  had  there  been  any  proof  of  such  approval, 
any  testimony  of  general  instructions,  of  which  this  libel  was 
the  outgrowth,  any  evidence  as  to  ratification,  the  jury  might 
have  been  warranted  in  inferring  a  wrongful  motive  to  fit 
the  wrongful  act.  But  absence  of  proof  of  his  disapproval, 
absence  of  proof  that  defendant  had  reproached  his  employee, 
or  that  he  had  discharged  him  —  in  fine,  absence  of  all  proof 
bearing  on  the  essential  question,  to  wit,  defendant's  motive 
—  cannot  be  permitted  to  take  the  place  of  evidence  with- 
out leading  to  a  most  dangerous  extension  of  the  doctrine, 
respondeat  superior. 

A  plaintiff,  whose  claim  to  punitive  damages  rests  upon  a 
wrongful  motive  of  defendant,  not  inherent  in  the  offence 
which  fixes  his  legal  liability,  must  present  some  proof  from 
which  such  wrongful  motive  may  be  legally  inferred. 

Inasmuch  as  the  plaintiff  below  failed  to  do  this,  the 
instruction  of  the  court  upon  this  point  was  misleading. 

The  judgment  of  the  Circuit  Court  should  be  reversed. 


30  CASES  ON  DAMAGES 

LAKE  SHORE  &  M.  S.  RAILWAY  v.  PRENTICE. 

Supreme  Court  of  the  Uuited  States,  1893.     147  U.  S.  101. 

Gray,  J.  The  onty  exceptions  taken  to  the  instructions  at 
the  trial,  which  have  been  argued  in  this  court,  are  to  those 
on  the  subject  of  punitive  damages. 

The  single  question  presented  for  our  decision,  therefore,  is 
whether  a  railroad  corporation  can  be  charged  with  punitive 
or  exemplary  damages  for  the  illegal,  wanton,  and  oppres- 
sive conduct  of  a  conductor  of  one  of  its  trains  towards  a 
passenger. 

This  question,  like  others  affecting  the  liabilit}'  of  a  railroad 
corporation  as  a  common  carrier  of  goods  or  passengers,  — 
such  as  its  right  to  contract  for  exemption  from  responsibility 
for  its  own  negligence,  or  its  liability  beyond  its  own  line,  or 
its  liability  to  one  of  its  servants  for  the  act  of  another  person 
in  its  employment,  —  is  a  question,  not  of  local  law,  but  of 
general  jurisprudence,  upon  which  this  court,  in  the  absence 
of  express  statute  regulating  the  subject,  will  exercise  its  own 
judgment,  uncontrolled  by  the  decisions  of  the  courts  of  the 
several  States.  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  368  ; 
Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S. 
397,  443  ;  Myrick  v.  Railroad  Co.,  107  U.  S.  102,  109  ;  Hough 
v.  Railway  Co.,  100  U.  S.  213,  226. 

The  most  distinct  suggestion  of  the  doctrine  of  exemplary 
or  punitive  damages  in  England  before  the  American  Revolu- 
tion is  to  be  found  in  the  remarks  of  Chief  Justice  Pratt 
Cafterwards  Lord  Camden)  in  one  of  the  actions  against  the 
king's  messengers  for  trespass  and  imprisonment,  under  gen- 
eral warrants  of  the  Secretary  of  State,  in  which,  the  plaintiff's 
counsel  having  asserted,  and  the  defendant's  counsel  having 
denied,  the  right  to  recover  "  exemplary  damages,"  the  Chief 
Justice  instructed  the  jury  as  follows:  "I  have  formerly  de- 
livered it  as  my  opinion  on  another  occasion,  and  I  still  con- 
tinue of  the  same  mind,  that  a  jury  have  it  in  their  power  to 
give  damages  for  more  than  the  injury  received.     Damages 


LAKE   SHORE   &  M.   S.   RAILWAY  v.   PRENTICE.        31 

are  designed,  not  only  as  a  satisfaction  to  the  injured  person, 
but  likewise  as  a  punishment  to  the  guilt}*,  to  deter  from  an}7 
such  proceeding  for  the  future,  and  as  a  proof  of  the  detesta- 
tion of  the  jury  to  the  action  itself."  Wilkes  v.  Wood,  Lofft, 
1,  18,  19,  19  Howell,  St.  T.  1153,  1167.  See,  also,  Huckle 
v.  Money,  2  Wils.  205,  207;  Sayer,  Dam.  218,  221.  The 
recovery  of  damages,  beyond  compensation  for  the  injury 
received,  by  way  of  punishing  the  guilty,  and  as  an  example 
to  deter  others  from  offending  in  like  manner,  is  here  clearly 
recognized. 

In  this  court  the  doctrine  is  well  settled  that  in  actions  of 
tort  the  jury,  in  addition  to  the  sum  awarded  by  way  of  com- 
pensation for  the  plaintiff's  injury,  may  award  exemplary, 
punitive,  or  vindictive  damages,  sometimes  called  "smart 
money,"  if  the  defendant  has  acted  wantonly,  or  oppressively, 
or  with  such  malice  as  implies  a  spirit  of  mischief  or  criminal 
indifference  to  civil  obligations  ;  but  such  guilt}7  intention  on 
the  part  of  the  defendant  is  required  in  order  to  charge  him 
with  exemplary  or  punitive  damages.  The  Amiable  Nancy, 
3  Wheat.  546,  558,  559  ;  Day  v.  Woodworth,  13  How.  363, 
371  ;  Railroad  Co.  v.  Quigley,  21  How.  202,  213,  214  ;  Rail- 
way Co.  v.  Arms,  91  U.  S.  489,  493,  495  •  Railway  Co.  v. 
Humes,  115  U.  S.  512,  521;  Barry  v.  Edmunds,  116  U.  S. 
550,  562,  563;  Railway  Co.  v.  Harris,  122  U.  S.  597,  609, 
610;  Railway  Co.  v.  Beckwith,  129  U.  S.  26,  36. 

Exemplary  or  punitive  damages,  being  awarded,  not  by 
way  of  compensation  to  the  sufferer,  but  by  way  of  punish- 
ment of  the  offender,  and  as  a  warning  to  others,  can  only 
be  awarded  against  one  who  has  participated  in  the  offence. 
A  principal,  therefore,  though  of  course  liable  to  make  com- 
pensation for  injuries  done  by  his  agent  within  the  scope  of 
his  employment,  cannot  be  held  liable  for  exemplary  or  pu- 
nitive damages,  merely  by  reason  of  wanton,  oppressive,  or 
malicious  intent  on  the  part  of  the  agent.  This  is  clearly 
shown  by  the  judgment  of  this  court  in  the  case  of  The  Ami- 
able Nancy,  3  Wheat.  546.  .  .  . 

The  rule  thus  laid  down  is  not  peculiar  to  courts  of  admi- 


32  CASES  ON  DAMAGES. 

rait}' ;  for,  as  stated  by  the  same  eminent  judge  two  years 
later,  those  courts  proceed,  in  cases  of  tort,  upon  the  same 
principles  as  courts  of  common  law,  in  allowing  exemplaiy  dam- 
ages, as  well  as  damages  by  way  of  compensation  or  remunera- 
tion for  expenses  incurred,  or  injuries  or  losses  sustained,  by 
the  misconduct  of  the  other  party.  Manufacturing  Co.  v.  Fiske, 
2  Mason,  119,  121.  In  Keene  v.  Lizardi,  8  La.  26,  33,  Judge 
Martin  said :  "  It  is  true,  juries  sometimes  very  property  give 
what  is  called  '  smart  money.'  They  are  often  warranted  in 
giving  vindictive  damages  as  a  punishment  inflicted  for  out- 
rageous conduct ;  but  this  is  only  justifiable  in  an  action 
against  the  wrongdoer,  and  not  against  persons  who,  on  account 
of  their  relation  to  the  offender,  are  only  consequentially 
liable  for  his  acts,  as  the  principal  is  responsible  for  the  acts 
of  his  factor  or  agent."  To  the  same  effect  are  The  State 
Rights,  Crabbe,  42,  47,  48;  The  Golden  Gate,  McAU.  104; 
Wardrobe  v.  Stage  Co.,  7  Cal.  118;  Boulard  v.  Calhoun,  13 
La.  Ann.  445  ;  Detroit  Daily  Post  Co.  v.  Mc Arthur,  16  Mich. 
447 ;  Grund  v.  Van  Vleck,  69  111.  478,  481  ;  Becker  v. 
Dupree,  75  111.  167;  Rosenkrans  v.  Barker,  115  111.  331; 
Kirksey  v.  Jones,  7  Ala.  622,  629  ;  Pollock  v.  Gantt,  69  Ala. 
373,  379  ;  Eviston  v.  Cramer,  57  Wis.  570 ;  Haines  v.  Schultz, 
50  N.  J.  Law,  481  ;  McCarthy  v.  De  Armit,  99  Pa.  St.  63,  72  ; 
Clark  v.  Newsam,  1  Exch.  131,  140 ;  Clissold  v.  Machell,  26 
U.  C.  Q.  B.  422.  .  .  . 

No  doubt,  a  corporation,  like  a  natural  person,  may  be  held 
liable  in  exemplary  or  punitive  damages  for  the  act  of  an 
agent  within  the  scope  of  his  employment,  provided  the  crimi- 
nal intent,  necessary  to  warrant  the  imposition  of  such  dam- 
ages, is  brought  home  to  the  corporation.  Railroad  Co.  v. 
Qnigley,  Railway  Co.  v.  Arms,  and  Railway  Co.  v.  Harris, 
above  cited ;  Caldwell  v.  Steamboat  Co.,  47  N.  Y.  282 ;  Bell 
v.  Railway  Co.,  10  C.  B.  (n.  s.)   287,  4  Law  T.  (n.  s.)  .293. 

Independent!}-  of  this,  in  the  case  of  a  corporation,  as  of 
an  individual,  if  any  wantonness  or  mischief  on  the  part  of 
the  agent,  acting  within  the  scope  of  his  employment,  causes 
additional  injury  to  the  plaintiff  in  body  or  mind,  the  principal 


LAKE   SHORE   &  M.   S.  RAILWAY  v.  PRENTICE.        33 

is,  of  course,  liable  to  make  compensation  for  the  whole  injury 
suffered.  Kennon  v.  Gilmer,  131  U.  S.  22;  Meagher  v. 
Driscoll,  99  Mass.  281,  285;  Smith  v.  Holcomb,  Id.  552; 
Hawes  v.  Knowles,  114  Mass.  518;  Campbell  v.  Car  Co.,  42 
Fed.  Rep.  484.  .  .  . 

The  president  and  general  manager,  or,  in  his  absence,  the 
vice-president  in  his  place,  actually  wielding  the  whole  exe- 
cutive power  of  the  corporation,  may  well  be  treated  as  so  far 
representing  the  corporation  and  identified  with  it  that  any 
wanton,  malicious,  or  oppressive  intent  of  his,  in  doing 
wrongful  acts  in  behalf  of  the  corporation  to  the  injury  of 
others,  may  be  treated  as  the  intent  of  the  corporation  itself; 
but  the  conductor  of  a  train,  or  other  subordinate  agent  or 
servant  of  a  railroad  corporation,  occupies  a  very  different 
position,  and  is  no  more  identified  with  his  principal,  so  as  to 
affect  the  latter  with  his  own  unlawful  and  criminal  intent, 
than  any  agent  or  servant  standing  in  a  corresponding  rela- 
tion to  natural  persons  carrying  on  a  manufactory,  a  mine,  or 
a  house  of  trade  or  commerce. 

The  law  applicable  to  this  case  has  been  found  nowhere 
better  stated  than  by  Mr.  Justice  Brayton,  afterwards  Chief 
Justice  of  Rhode  Island,  in  the  earliest  reported  case  of  the 
kind,  in  which  a  passenger  sued  a  railroad  corporation  for  his 
wrongful  expulsion  from  a  train  by  the  conductor,  and  recov- 
ered a  verdict,  but  excepted  to  an  instruction  to  the  jury  that 
"  punitive  or  vindictive  damages,  or  smart  money,  were  not 
to  be  allowed  as  against  the  principal,  unless  the  principal 
participated  in  the  wrongful  act  of  the  agent,  expressly  or 
impliedly,  by  his  conduct  authorizing  it  or  approving  it,  either 
before  or  after  it  was  committed."  This  instruction  was  held 
to  be  right,  for  the  following  reasons :  "  In  cases  where  puni- 
tive or  exemplary  damages  have  been  assessed,  it  has  been 
done,  upon  evidence  of  such  wilfulness,  recklessness,  or 
wickedness,  on  the  part  of  the  party  at  fault,  as  amounted  to 
criminality,  which  for  the  good  of  society  and  warning  to  the 
individual  ought  to  be  punished.  If  in  such  cases,  or  in  any 
case  of  a  civil  nature,  it  is  the  policy  of  the  law  to  visit  upon 


34  CASES  ON  DAMAGES. 

the  offender  such  exemplary  damages  as  will  operate  as  pun- 
ishment, and  teach  the  lesson  of  caution  to  prevent  a  repe- 
tition of  criminaltty,  yet  we  do  not  see  how  such  damages  can 
be  allowed,  where  the  principal  is  prosecuted  for  the  tortious 
act  of  his  servant,  unless  there  is  proof  in  the  cause  to  impli- 
cate the  principal  and  make  him  particeps  criminis  of  his 
agent's  act.  No  man  should  be  punished  for  that  of  which 
he  is  not  guilty."  "  Where  the  proof  does  not  implicate  the 
principal,  and,  however  wicked  the  servant  may  have  been, 
the  principal  neither  expressly  nor  impliedly  authorizes  or 
ratifies  the  act,  and  the  criminality  of  it  is  as  much  pgainst 
him  as  against  any  other  member  of  society,  we  think  it  is 
quite  enough  that  he  shall  be  liable  in  compensatory  damages 
for  the  injury  sustained  in  consequence  of  the  wrongful  act  of 
a  person  acting  as  his  servant."  Hagan  v.  Railroad  Co.,  3 
R.  I.  88,  91. 

The  like  view  was  expressed  b\r  the  Court  of  Appeals  of  New 
York  in  an  action  brought  against  a  railroad  corporation  by  a 
passenger  for  injuries  suffered  by  the  neglect  of  a  switchman, 
who  was  intoxicated  at  the  time  of  the  accident.  It  was  held 
that  evidence  that  the  switchman  was  a  man  of  intemperate 
habits,  which  was  known  to  the  agent  of  the  company  having 
the  power  to  employ  and  discharge  him  and  other  subordi- 
nates, was  competent  to  support  a  claim  for  exemplar}'  dam- 
ages, but  that  a  direction  to  the  juiy  in  general  terms  that  in 
awarding  damages  they  might  add  to  full  compensation  for 
the  injury  "  such  sum  for  exemplary  damages  as  the  case 
calls  for,  depending  in  a  great  measure,  of  course,  upon  the 
conduct  of  the  defendant,"  entitled  the  defendant  to  a  new 
trial ;  and  Chief  Justice  Church,  delivering  the  unanimous 
judgment  of  the  court,  stated  the  rule  as  follows:  "  For  in- 
juries by  the  negligence  of  a  servant  while  engaged  in  the 
business  of  the  master,  within  the  scope  of  his  employment, 
the  latter  is  liable  for  compensatory  damages ;  but  for  such 
negligence,  however  gross  or  culpable,  he  is  not  liable  to  be 
punished  in  punitive  damages  unless  he  is  also  chargeable 
with  gross  misconduct.     Such  misconduct  may  be  established 


LAKE  SHORE  &  M.  S.  RAILWAY  v.   PRENTICE.   35 

i 

by  showing  that  the  act  of  the  servant  was  authorized  or  rati- 
fied, or  that  the  master  employed  or  retained  the  servant, 
knowing  that  he  was  incompetent,  or,  from  bad  habits,  unfit 
for  the  position  he  occupied.  Something  more  than  ordinary 
negligence  is  requisite  ;  it  must  be  reckless,  and  of  a  criminal 
nature,  and  clearly  established.  Corporations  may  incur  this 
liability  as  well  as  private  persons.  If  a  railroad  company, 
for  instance,  knowingly  and  wantonly  employs  a  drunken  en- 
gineer or  switchman,  or  retains  one  after  knowledge  of  his 
habits  is  clearly  brought  home  to  the  company,  or  to  a  super- 
intending agent  authorized  to  employ  and  discharge  him,  and 
injury  occurs  by  reason  of  such  habits,  the  company  may  and 
ought  to  be  amenable  to  the  severest  rule  of  damages  ;  but  I 
am  not  aware  of  any  principle  which  permits  a  jury  to  award 
exemplary  damages  in  a  case  which  does  not  come  up  to  this 
standard,  or  to  graduate  the  amount  of  such  damages  by  their 
views  of  the  propriety  of  the  conduct  of  the  defendant,  unless 
such  conduct  is  of  the  character  before  specified."  Cleghom 
v.  Railroad  Co.,. 56  N.  Y.  44,  47,  48. 

Similar  decisions,  denying  upon  like  grounds  the  liability 
of  railroad  companies  and  other  corporations,  sought  to  be 
charged  with  punitive  damages  for  the  wanton  or  oppressive 
acts  of  their  agents  or  servants,  not  participated  in  or  ratified 
by  the  corporation,  have  been  made  b}r  the  courts  of  New 
Jersey,  Pennsylvania,  Delaware,  Michigan,  Wisconsin,  Cali- 
fornia, Louisiana,  Alabama,  Texas,  and  West  Virginia. 

It  must  be  admitted  that  there  is  a  wide  divergence  in  the 
decisions  of  the  State  courts  upon  this  question,  and  that  cor- 
porations have  been  held  liable  for  such  damages  under  simi- 
lar circumstances  in  New  Hampshire,  in  Maine,  and  in  many 
of  the  Western  and  Southern  States.  But  of  the  three  leading 
cases  on  that  side  of  the  question,  Hopkins  v.  Railroad  Co., 
36  N.  H.  9,  can  hardly  be  reconciled  witli  the  later  decisions 
in  Fay  v.  Parker,  53  N.  H.  342,  and  Bixby  v.  Dunlap,  56  N. 
H.  456 ;  and  in  Goddard  v.  Railway  Co.,  57  Maine,  202,  228, 
and  Railway  Co.  v.  Dunn,  19  Ohio  St.  162,  590,  there  were 
strong  dissenting  opinions.      In  many,  if  not  most,  of  the 


36  CASES  ON  DAMAGES. 

other  cases,  either  corporations  were  put  upon  different 
grounds  in  this  respect  from  other  principals,  or  else  the  dis- 
tinction between  imputing  to  the  corporation  such  wrongful 
act  and  intent  as  would  render  it  liable  to  make  compensation 
to  the  person  injured,  and  imputing  to  the  corporation  the 
intent  necessary  to  be  established  in  order  to  subject  it  to 
exemplary  damages  by  way  of  punishment,  was  overlooked  or 
disregarded. 

Most  of  the  cases  on  both  sides  of  the  question,  not  speci- 
fically cited  above,  are  collected  in  1  Sedg.  Dam.  (8th  ed.) 
§  380. 

In  the  case  at  bar,  the  plaintiff  does  not  appear  to  have 
contended  at  the  trial,  or  to  have  introduced  an}T  evidence 
tending  to  show,  that  the  conductor  was  known  to  the  defend- 
ant to  be  an  unsuitable  person  in  any  respect,  or  that  the 
defendant  in  any  way  participated  in,  approved,  or  ratified 
his  treatment  of  the  plaintiff  ;  nor  did  the  instructions  given 
to  the  jury  require  them  to  be  satisfied  of  an}r  such  fact  before 
awarding  punitive  damages ;  but  the  only  fact  which  they 
were  required  to  find,  in  order  to  support  a  claim  for  punitive 
damages  against  the  corporation,  was  that  the  conductor's 
illegal  conduct  was  wanton  and  oppressive.  For  this  error, 
as  we  cannot  know  how  much  of  the  verdict  was  intended  by 
the  jury  as  a  compensation  for  the  plaintiff's  injury,  and  how 
much  by  way  of  punishing  the  corporation  for  an  intent  in 
which  it  had  no  part,  the  judgment  must  be  reversed,  and  the 
case  remanded  to  the  Circuit  Court,  with  directions  to  set 
aside  the  verdict,  and  to  order  a  new  trial. 


CHAPTER  IIL 

LIQUIDATED   DAMAGES. 


KEMBLE  v.   FARREN. 
Common  Pleas,  1829.     6  Bing.  141. 

Tindal,  C.J.1  This  is  a  rule  which  calls  upon  the  de* 
fendant  to  show  cause  wh}r  the  verdict,  which  has  been 
entered  for  the  plaintiff  for  £750,  should  not  be  increased 
to  £1000. 

The  action  was  brought  upon  an  agreement  made  between 
the  plaintiff  and  the  defendant,  whereby  the  defendant  agreed 
to  act  as  a  principal  comedian  at  the  Theatre  Royal,  Covent 
Garden,  during  the  four  then  next  seasons,  commencing 
October,  1828,  and  also  to  conform  in  all  things  to  the  usual 
regulations  of  the  said  Theatre  Royal,  Covent  Garden  ;  and 
the  plaintiff  agreed  to  pay  the  defendant  £3  6s.  8d.  every 
night  on  which  the  theatre  should  be  open  for  theatrical 
performances,  during  the  next  four  seasons,  and  that  the 
defendant  should  be  allowed  one  benefit  night  during  each 
season,  on  certain  terms  therein  specified.  And  the  agree- 
ment contained  a  clause,  that  if  either  of  the  parties  should 
neglect  or  refuse  to  fulfil  the  said  agreement,  or  any  part 
thereof,  or  any  stipulation  therein  contained,  such  party 
should  pay  to  the  other  the  sum  of  £1000,  to  which  sum  it 
was  thereby  agreed  that  the  damages  sustained  by  any  such 
omission,  neglect,  or  refusal,  should  amount;  and  which 
sum  was  thereby  declared  by  the  said  parties  to  be  liquidated 
and  ascertained  damages,  and  not  a  penalty  or  penal  sum, 
or  in  the  nature  thereof. 

1  The  opinion  only  is  given :  it  sufficiently  states  the  case. 


38  CASES  ON  DAMAGES. 

The  breach  alleged  in  the  declaration  was,  that  the  defendant 
refused  to  act  during  the  second  season,  for  which  breach,  the 
jur}',  upon  the  trial,  assessed  the  damages  at  £750,  which 
damages  the  plaintiff  contends  ought  by  the  terms  of  the 
agreement  to  have  been  assessed  at  £1000. 

It  is,  undoubtedly,  difficult  to  suppose  any  words  more 
precise  or  explicit  than  those  used  in  the  agreement ;  the 
same  declaring  not  only  affirmatively  that  the  sum  of  £1000 
should  be  taken  as  liquidated  damages,  but  negatively  also 
that  it  should  not  be  considered  as  a  penalty,  or  in  the  nature 
thereof.  And  if  the  clause  had  been  limited  to  breaches  which 
were  of  an  uncertain  nature  and  amount,  we  should  have 
thought  it  would  have  had  the  effect  of  ascertaining  the  dam- 
ages upon  any  such  breach  at  £1000.  For  we  see  nothing 
illegal  or  unreasonable  in  the  parties,  by  their  mutual  agree- 
ment, settling  the  amount  of  damages,  uncertain  in  their 
nature,  at  any  sum  upon  which  the}'  ma}r  agree.  In  many 
cases,  such  an  agreement  fixes  that  which  is  almost  impossible 
to  be  accurately  ascertained  ;  and  in  all  cases,  it  saves  the  ex- 
pense and  difficult}'  of  bringing  witnesses  to  that  point.  But  in 
the  present  case,  the  clause  is  not  so  confined  ;  it  extends  to 
the  breach  of  airy  stipulation  b}'  either  party.  If,  therefore, 
on  the  one  hand,  the  plaintiff  had  neglected  to  make  a  single 
payment  of  £3  6s.  8d.  per  da}-,  or  on  the  other  hand,  the 
defendant  had  refused  to  conform  to  any  usual  regulation 
of  the  theatre,  however  minute  or  unimportant,  it  must  have 
been  contended  that  the  clause  in  question,  in  either  case, 
would  have  given  the  stipulated  damages  of  £1000.  But 
that  a  very  large  sum  should  become  immediately  payable, 
in  consequence  of  the  nonpayment  of  a  very  small  sum,  and 
that  the  former  should  not  be  considered  as  a  penalty,  appears 
to  be  a  contradiction  in  terms  ;  the  case  being  precisely  that 
in  which  courts  of  equity  have  always  relieved,  and  against 
which  courts  of  law  have,  in  modern  times,  endeavored  to 
relieve,  by  directing  juries  to  assess  the  real  damages  sus- 
tained b}-  the  breach  of  the  agreement.  It  has  been  argued 
at  the   bar,    that   the   liquidated    damages   apply   to   those 


KEEBLE   v.   KEEBLE. 


39 


breaches  of  the  agreement  only  which  are  in  their  nature 
uncertain,  leaving  those  which  are  certain  to  a  distinct 
remedy,  by  the  verdict  of  a  jury.  But  we  can  only  say,  if 
such  is  the  intention  of  the  parties,  they  have  not  expressed 
it ;  but  have  made  the  clause  relate,  by  express  and  positive 
terms,  to  all  breaches  of  every  kind.  We  cannot,  therefore, 
distinguish  this  case,  in  principle,  from  that  of  Astley  v. 
Weldon,  in  which  it  was  stipulated,  that  either  of  the  parties 
neglecting  to  perform  the  agreement  should  pay  to  the  other 
of  them  the  full  sum  of  £200,  to  be  recovered  in  his  Majesty's 
Courts  at  Westminster.  Here  there  was  a  distinct  agreement, 
that  the  sum  stipulated  should  be  liquidated  and  ascertained 
damages  ;  there  were  clauses  in  the  agreement,  some  sounding 
in  uncertain  damages,  others  relating  to  certain  pecuniary 
payments ;  the  action  was  brought  for  the  breach  of  a  clause 
of  an  uncertain  nature  ;  and  yet  it  was  held  by  the  court, 
that  for  this  very  reason  it  would  be  absurd  to  construe  the 
sum  inserted  in  the  agreement  as  liquidated  damages,  and 
it  was  held  to  be  a  penal  sum  only.  As  this  case  appears  to 
us  to  be  decided  on  a  clear  and  intelligible  principle,  and  to 
apply  to  that  under  consideration,  we  think  it  right  to  adhere 
to  it,  and  this  makes  it  unnecessary  to  consider  the  subse- 
quent cases,  which  do  not  in  any  way  break  in  upon  it.  The 
consequence  is,  we  think  the  present  verdict  should  stand, 
and  the  rule  for  increasing  the  damages  be  discharged. 

Mule  discharged. 


KEEBLE  v.   KEEBLE. 

Alabama,  1888.     85  Ala.  552. 

Somkrville,  J.1  The  appellant  was  in  the  employment  of 
the  appellee's  testator  as  a  business  manager,  at  very  liberal 
wages,  having  been  a  partner  with  him  in  the  mercantile  busi- 
ness, under  the  firm  name  of  R.  C.  Keeble  &  Co.  Although 
he  was  but  an  empIo3-e,  having  sold  to  R.  C.  Keeble  his  entire 

1  Part  of  the  opinion  only  is  given. 


40  CASES   ON  DAMAGES. 

interest  in  the  partnership  business,  he  remained  ostensibly  a 

partner.     The  terms  of  the  employment,  reduced  to  writing, 

imposed   on  the   appellant,   Henry   Keeble,   the   obligation, 

among  other   duties,   "  to  wholly  abstain   from  the  use  of 

intoxicating  liquors,"  and  "  to  continue  and  remain  sober," 

giving  his  diligent  attention  to  the  business  of  his  employer, 

and  promising,  in  the  event  he  should  become  intoxicated, 

that  he  would   pay,  "  as   liquidated   damages,"  the  sum  of 

SI 000,  which  the  testator,  Richard  Keeble,  was  authorized 

to  retain  out  of  a  certain  debt  he  owed  the  appellant.     The 

appellant  violated  his  promise  by  becoming  intoxicated,  and 

remained  so  for  a  long  time,  and  acted  rudely  and  insultingly 

towards  the  customers  and   employes  of  the  testator,   and 

otherwise   deported   himself,  by  reason  of  intoxication,   in 

such  manner  as  to  do  injury  to  the  business.     It  is  not  denied 

by  appellant's  counsel  that  this  is  a  total  breach  of  the  promise 

to  keep  sober ;  nor  is  it  argued  that  the  damage  resulting  from 

the  violation  of  such  a  promise  can  be  ascertained  with  any 

degree  of  certainty  ;  nor  even  that  the  amount  agreed  to  be 

paid  as  liquidated  damages,  in  the  event  of  a   breach,  is 

disproportionate    to    the    damages   which   may   have    been 

actually  sustained  in  this  case.     But  the  contention  seems 

to  be  that,  inasmuch  as  it  was  possible  for  a  breach  to  occur 

with   no  actual   damages   other  than   nominal,  the  amount 

agreed   to  be   paid   should   be  construed   to  be  a  penalty. 

Unless  this  view  is  correct,  the  application  of  the  foregoing 

rules  to  the  construction  of  the  agreement  manifestly  stamps 

it  as  a  stipulation  for  liquidated  damages,  and  not  a  penalty. 

It  is  argued,  in  other  words,  that  becoming  intoxicated  in 

private,  while  off  duty,  would  be  a  violation  of  the  contract, 

but  would  be  attended  with  no  actual  damage  to  the  business 

of  R.  C.  Keeble  &  Co.     This  fact  would,  in  our  opinion, 

except    the   case   from   the    operation   of   the    rules    above 

enunciated.      There  are   but  few  agreements  of  this   kind 

where  the  stipulation  is  to  do  or  not  to  do  a  particular  act, 

in  which  the  damages  may  not,  according  to  circumstances, 

vary,  on  a  sliding  scale,  from  nominal  damages  to  a  con- 


KEEBLE   v.   KEEBLE. 


41 


siderable  sum.  One  may  sell  out  the  good-will  of  his  busi- 
ness in  a  given  locality,  and  agree  to  abstain  from  its  further 
prosecution,  or,  in  the  event  of  his  breach  of  his  agreement, 
to  pay  a  certain  sum  as  liquidated  damages  ;  as,  for  example, 
not  to  practise  one's  profession  as  a  physician  or  lawyer,  not 
to  run  a  steamboat  on  a  certain  river  or  to  carry  on  the 
hotel  business  in  a  particular  town,  not  to  re-establish  a 
newspaper  for  a  given  period,  or  to  carry  on  a  particular 
branch  of  business  within  a  certain  distance  from  a  named 
city.  In  all  such  cases,  as  often  decided,  it  is  competent  for 
the  parties  to  stipulate  for  the  payment  of  a  gross  sum  by 
way  of  liquidated  damages  for  the  violation  of  the  agreement, 
and  for  the  very  reason  that  such  damages  are  uncertain, 
fluctuating,  and  incapable  of  easy  ascertainment.  Williams 
v.  Vance,  30  Amer.  Rep.  29-31,  note;  Graham  v.  Bickham, 
1  Amer.  Dec.  336-338,  note ;  1  Pom.  Eq.  Jur.  §  442,  note  1. 
It  is  clear  that  each  of  these  various  agreements  may  be 
violated  by  a  substantial  breach,  and  yet  no  damages 
might  accrue  except  such  as  are  nominal.  The  obligor  may 
practise  medicine,  and  possibly  never  interfere  with  the 
practice  of  the  other  contracting  party ;  or  law,  without 
having  a  paying  client ;  or  he  may  run  a  steamboat  without 
a  passenger ;  or  an  hotel  without  a  guest ;  or  carry  on  a 
newspaper  without  the  least  injury  to  any  competitor.  But 
the  law  will  not  enter  upon  an  investigation  as  to  the  quantum 
of  damages  in  such  cases.  This  is  the  very  matter  settled  by 
the  agreement  of  the  parties.  If  the  act  agreed  not  to  be 
done  is  one  from  which,  in  the  ordinary  course  of  events, 
damages,  incapable  of  ascertainment  save  by  conjecture,  are 
liable  naturally  to  follow,  sometimes  more  and  sometimes 
less,  according  to  the  aggravation  of  the  act,  the  court  will 
not  stop  to  investigate  the  extent  of  the  grievance  com- 
plained of  as  a  total  breach,  but  will  accept  the  sum  agreed 
on  as  a  proper  and  just  measurement,  by  way  of  liquidated 
damages,  unless  the  real  intention  of  the  parties,  under  the 
rules  above  announced,  designed  it  as  a  penalty.  We  may 
add,   moreover,  that  no  one  can  accurately  estimate  the 


42  CASES  ON  DAMAGES. 

physiological  relation  between  private  and  public  drunken- 
ness, nor  the  causal  connection  between  intoxication  one 
time  and  a  score  of  times.  The  latter,  in  each  instance, 
may  follow  from  the  former,  and  the  one  may  naturally  lead 
to  the  other.  There  would  seem  to  be  nothing  harsh  or 
unreasonable  in  stipulating  against  the  very  source  and 
beginning  of  the  more  aggravated  evil  sought  to  be  avoided. 
The  duty  resting  on  the  court,  in  all  these  cases,  is  to  so 
apply  the  settled  rules  of  construction  as  to  ascertain  the 
legally  expressed  and  real  intention  of  the  parties.  Courts 
are  under  no  obligations,  nor  have  they  the  power,  to  make 
a  wiser  or  better  contract  for  either  of  the  parties  than  he 
may  be  supposed  to  have  made  for  himself.  The  court 
below,  in  our  judgment,  did  not  err  in  holding,  as  it  did,  by 
its  rulings,  that  the  sura  agreed  to  be  paid  the  appellee's 
testator  was  liquidated  damages,  and  not  a  penalty. 

Affirmed. 


SMITH  v.  BERGENGREN. 

Massachusetts,  1890.     153  Mass.  236. 

Holmes,  J.1  The  defendant  covenanted  never  to  practise 
his  profession  in  Gloucester  so  long  as  the  plaintiff  should  be 
in  practice  there,  provided,  however,  that  he  should  have  the 
right  to  do  so  at  an}'  time  after  five  years,  by  paying  the 
plaintiff  two  thousand  dollars,  "  but  not  otherwise."  This 
sum  of  two  thousand  dollars  was  not  liquidated  damages, 
still  less  was  it  a  penalty.  It  was  not  a  sum  to  be  paid  in 
case  the  defendant  broke  his  contract,  and  did  what  he  hud 
agreed  not  to  do.  It  was  a  price  fixed  for  what  the  contract 
permitted  him  to  do  if  he  paid.  The  defendant  expressly 
covenanted  not  to  return  to  practice  in  Gloucester  unless  he 
paid  this  price.  It  would  be  against  common  sense  to  say 
that  he  could  avoid  the  effect  of  thus  having  named  the  sum 

1  Part  of  the  opinion  only  is  given. 


TENNESSEE   MANUFACTURING  CO.  v.  JAMES.         43 

by  simply  returning  to  practice  without  paying,  and  could 
escape  for  a  less  sum  if  the  jury  thought  the  damage  done  the 
plaintiff  by  his  competition  was  less  than  two  thousand  dol- 
lars. The  express  covenant  imported  the  further  agreement, 
that  if  the  defendant  did  return  to  practice  he  would  pay  the 
price.  No  technical  words  are  necessary  if  the  intent  is  fairly 
to  be  gathered  from  the  instrument.  See  Pearson  v.  Wil- 
liams, 24  Wend.  244,  and  26  Wend.  630  ;  Stevinson's  Case, 
1  Leon.  324;  St.  Albans  v.  Ellis,  16  East,  352;  Deverill  v. 
Burnell,  L.  R.  8  C.  P.  475  ;  National  Provincial  Bank  of 
England  v.  Marshall,  40  Ch.  D.  112. 

It  the  sum  had  been  fixed  as  liquidated  damages,  the  de- 
fendant would  have  been  bound  to  pay  it.  Cushing  v.  Drew, 
97  Mass.  445  ;  Lynde  v.  Thompson,  2  Allen,  456  ;  Holbrook 
v.  Tobey,  66  Maine,  410.  But  this  case  falls  within  the 
language  of  Lord  Mansfield  in  Lowe  v.  Peers,  4  Burr.  2225> 
2229,  that  if  there  is  a  covenant  not  to  plough  with  a  penalty 
in  a  lease,  a  court  of  equity  will  relieve  against  the  penalty, 
"  but  if  it  is  worded  '  to  pay  £5  an  acre  for  every  acre 
ploughed  up,'  there  is  no  alternative,  no  room  for  any  relief 
against  it,  no  compensation  ;  it  is  the  substance  of  the  agree- 
ment." See,  also,  Ropes  v.  Upton,  125  Mass.  258,  260. 
The  ruling  excepted  to  did  the  defendant  no  wrong.  In  the 
opinion  of  a  majority  of  the  court,  the  exceptions  must  be 
overruled.  Exceptions  overruled. 


TENNESSEE  MANUFACTURING  CO.  v.  JAMES. 

Tennessee,  1892.     91  Tenn  154. 

Plaintiff  was  an  employe  of  the  appellant,  a  corporation 
engaged  in  the  manufacture  of  cotton  goods.  The  contract 
of  employment  was  in  writing;  by  one  of  its  provisions  it  was 
stipulated  that  the  employe  should  give  two  weeks'  notice  of 
her  intention  to  quit.  It  is  further  provided  that  in  case  she 
should  leave  without  giving  two  weeks'  notice,  or  fail  or  refuse 


44  CASES  ON  DAMAGES. 

faithfully  to  work  during  a  period  of  two  weeks  after  giving 
such  notice,  then  the  sum  of  ten  dollars  was  "agreed  upon 
as  liquidated  damages  due  said  Tennessee  Manufacturing 
Company  at  the  time  of  my  failure  to  comply  with  the  terms 
of  this  contract,  to  compensate  it  for  all  damages,  both  actual 
and  exemplary,  and  all  loss,  arising  from  my  failure  to  carry 
out  the  terms  of  this  agreement." 

Appellee  gave  notice  of  her  intention  to  leave,  and  there- 
after worked  ten  days,  but  at  the  end  of  that  time  quit  with- 
out any  excuse.  At  the  time  she  quit  there  was  due  her 
twenty  days'  wages  (amounting  to  ten  dollars),  including  the 
ten  days  after  her  notice.  If  the  stipulation  was  invalid,  the 
company  owes  her  ten  dollars ;  if  valid,  then  nothing  is  due 
her.1 

Lurton,  J.  We  agree  with  the  Circuit  Judge  in  holding 
that  this  contract  does  not  fall  within  the  case  of  Schrimpf  y. 
Manufacturing  Co.,  86  Tenn.  219.  That  case  concerned  a 
contract  construed  as  stipulating  for  a  penalty  in  case  of  a 
breach.  It  was  held  not  to  be  an  agreement  for  liquidated 
damages,  because  the  forfeiture  covered  all  the  wages  due  at 
time  of  breach,  regardless  of  amount  due,  and  regardless  as 
to  whether  the  arrearages  were  the  consequence  of  the  default 
of  the  company.  It  was  a  contract  hard  and  unconscionable. 
It  preserved  no  proportion  between  the  sum  forfeited  and  the 
actual  damages,  and  put  all  employes  upon  same  footing, 
whether  much  or  little  was  earned,  much  or  little  due,  when 
breach  occurred.  The  damages  were  to  be  all  that  was  due, 
in  any  case.  To  one  this  might  have  been  the  wages  of 
months  ;  to  another,  the  earnings  of  but  a  day.  But  in  that 
case  Chief  Justice  Turney  quoted  and  indorsed  the  language 
of  Campbell,  J.,  in  Richardson  v.  Woehler,  26  Mich.  90, 
where  he  said:  "We  have  no  difficulty  in  holding  that  the 
injury  caused  by  the  sudden  breaking  off  of  a  contract  of  ser- 
vice by  either  party  involves  such  difficulties  concerning  the 
actual  loss  as  to  render  a  reasonable  agreement  for  stipulated 

1  This  statement  of  facts  is  condensed  from  the  opinion  of  Lubton,  J. 
Part  of  the  opinion  is  omitted. 


TENNESSEE  MANUFACTURING   CO.  v.  JAMES.         45 

damages  appropriate.  If  a  fixed  sum,  or  a  maximum  within 
which  wages  unpaid  and  accruing  since  the  last  pay-day 
might  be  forfeited,  should  be  agreed  on,  and  shall  not  be 
unreasonable  or  an  oppressive  exaction,  there  would  seem  to 
be  no  legal  objection  to  the  stipulation,  if  both  parties  are 
equally  and  justly  protected."  Applying  these  principles  to 
the  case  for  judgment,  we  have  no  difficulty  in  holding  that 
the  stipulation  here  is  for  liquidated  damages,  and  not  for  a 
penalty,  and  that  the  contract  is  neither  unreasonable  nor 
oppressive.  "  The  tendency  and  preference  of  the  law  is  to 
regard  stated  sums  as  a  penalty,  because  actual  damages  can 
then  be  recovered,  and  the  recovery  limited  to  such  damages. 
This  tendenc}'  and  preference,  however,  does  not  exist  when 
the  actual  damages  cannot  be  ascertained  by  any  standard. 
A  stipulation  to  liquidate  damages  in  such  cases  is  considered 
favorably."  1  Suth.  Dam.  490.  This  contract  of  employ- 
ment on  its  face  affords  no  data  by  which  the  actual  damages 
likely  to  result  from  its  non-observance  can  with  an}'  certainty 
be  ascertained.  Such  a  circumstance  has  been  regarded  as 
justifying  the  courts  in  holding  the  sum  stipulated  as  liqui- 
dated damages. 

The  plaintiff  in  error  was  a  cotton-mill,  having  in  its  em- 
ployment hundreds  of  hands.  The  work  is  divided  into  many 
departments.  The  same  material  is  handled  by  one  set  of 
hands,  and  put  in  condition  for  another,  and  the  second  de- 
partment still  further  advances  its  manufacture  ;  and  so  on, 
through  successive  stages  of  progress.  The  evidence  shows 
that  each  department  is  dependent  upon  that  immediately 
below  it.  Now,  if  the  operatives  of  one  department  quit,  or 
their  work  is  delayed,  its  effect  is  felt  in  all  to  a  greater  or 
less  degree.  It  is  also  shown  that  it  is  not  always  easy  to 
replace  an  operative  at  once,  and  that  the  unexpected  quitting 
of  even  one  hand  will,  to  some  extent,  affect  the  results 
throughout  the  mill.  Yet  the  evidence  shows  that  it  would  be 
impossible  to  calculate  with  any  certainty  the  precise,  actual 
loss  due  to  an  unexpected  breach  of  an  employe's  engage- 
ment ;  though  it  is  shown  that  there  are  some  departments  of 


46  CASES  ON  DAMAGES. 

work  where  the  quitting  of  a  small  number  of  hands,  without 
notice,  would  stop  the  entire  mill,  and  throw  other  hundreds 
out  of  employment.  In  this  day  of  great  factories,  and  the 
consequent  division  of  labor  into  separate  departments,  a 
degree  of  interdependence  among  employes  exists,  which  they 
ought  and  do  recognize,  and  which  makes  the  obligation  of 
each  to  the  whole,  and  to  the  common  empk^'er,  all  the  more 
important.  The  case  is  one,  then,  where  the  certainty  of 
some  damage,  and  the  uncertainty  of  means  and  standards  by 
which  the  actual  damage  can  be  ascertained,  requires  the 
courts  to  uphold  the  contract  as  one  for  liquidated  damages, 
and  not  as  providing  for  a  penalty.  The  sum  fixed  is  certain. 
It  is  proportioned  to  the  earning  capacity  of  the  employe,  and 
hence  presumably  with  regard  to  the  particular  results  of  a 
breach  in  each  department.  There  is  no  hardship  in  the 
agreement  requiring  two  weeks'  notice.  If  the  operative 
leaves  for  good  cause,  the  contract  would  not  apply.  If  able 
to  work,  the  pay  continues  until  notice  has  been  worked  out. 
That  she  returned  the  next  day  after  quitting,  and  offered 
to  work  out  her  notice,  is  no  compliance.  The  mischief  had 
been  done.  She  had  voluntarily,  and  without  pretence  of 
excuse,  or  asking  to  be  released,  gone  off,  and  left  her  work 
standing,  and  endeavored  to  get  others  to  go  with  her.  The 
damages  had  accrued,  and,  under  the  facts  of  this  case,  appel- 
lant was  not  bound  to  restore  her.  Reverse.  Judgment  here 
for  plaintiff  in  error. 

MONMOUTH   PARK   ASSOC,   v.   WALLIS   IRON 
WORKS. 

New  Jersey  Court  of  Errors  and  Appeals,  1893. 
55  N.  J.  L.  132. 

Dixon,  J.1     The  plaintiff  urged  that  the  $100  a  day  was  a 
penalty  ;  and  so  the  trial  judge  ruled,  requiring  that  the  de- 

1  Only  part  of  the  opinion  is  given.     The  only  part  of  the  contract 
which  is  material  to  the  point  under  discussion  is  as  follows :  "  In  case  the 


MONMOUTH  PARK  ASSOC,  v.  WALLIS  IRON  WORKS.      47 

fendant  should  prove  the  actual  damages  and  be  allowed  only 
for  what  was  proved.  To  this  ruling  the  defendant  excepted. 
In  determining  whether  a  sum,  which  contracting  parties 
have  declared  payable  on  default  in  performance  of  their 
contract,  is  to  be  deemed  a  penalty  or  liquidated  damages, 
the  general  rule  is  that  the  agreement  of  the  parties  will  be 
effectuated.  Their  agreement  will,  however,  be  ascertained 
by  considering,  not  only  particular  words  in  their  contract, 
but  the  whole  scope  of  their  bargain,  including  the  subject 
to  which  it  relates.  If,  on  such  consideration,  it  appears 
that  they  have  provided  for  larger  damages  than  the  law 
permits,  e.  g.,  more  than  the  legal  rate  for  the  non-payment 
of  mone}7,  or  that  they  have  provided  for  the  same  damages 
on  the  breach  of  an}T  one  of  several  stipulations,  when  the 
loss  resulting  from  such  breaches  clearly  must  differ  in 
amount,  or  that  they  have  named  an  excessive  sum  in  a  case 
where  the  real  damages  are  certain  or  readily  reducible  to 
certainty  by  proof  before  a  jury,  or  a  sum  which  it  would  be 
unconscionable  to  award,  under  any  of  these  conditions  the 
sum  designated  is  deemed  a  penalty.  And  if  it  be  doubtful 
on  the  whole  agreement  whether  the  sum  is  intended  as  a 
penalty  or  as  liquidated  damages,  it  will  be  construed  as  a 
penalt}',  because  the  law  favors  mere  indemnity.  But  when 
damages  are  to  be  sustained  by  the  breach  of  a  single  stipu- 

said  party  of  the  first  part  shall  [fail]  to  fully  and  entirely,  and  in  con- 
formity to  the  provisions  and  conditions  of  this  agreement,  perform  and 
complete  the  said  work,  and  each  and  every  part  and  appurtenance  thereto, 
within  the  time  hereinbefore  limited  for  such  performance  and  com- 
pletion, or  within  such  further  time  as  in  accordance  with  the  provisions 
of  this  agreement  shall  be  fixed  or  allowed  for  such  performance  and  com- 
pletion, the  said  party  of  the  first  part  shall  and  will  pay  to  the  said  party 
of  the  second  part  the  sum  of  one  hundred  dollars  for  each  and  every  day 
that  they,  the  said  party  of  the  first  part,  shall  be  in  default,  which  said 
sum  of  one  hundred  dollars  per  day  is  hereby  agreed  upon,  fixed  and  de- 
termined by  the  parties  hereto  as  the  damages  which  the  party  of  the 
second  part  will  suffer  by  reason  of  such  default,  and  not  by  way  of  pen- 
alty. And  the  said  party  of  the  second  part  may  and  shall  deduct  and 
retain  the  same  out  of  any  moneys  which  may  be  due  or  become  due  to 
the  party  of  the  first  part  under  this  agreement." 


48  CASES  ON  DAMAGES. 

lation,  and  they  are  uncertain  in  amount  and  not  readily  sus- 
ceptible of  proof  under  the  rules  of  evidence,  then,  if  the 
parties  have  agreed  upon  a  sura  as  the  measure  of  compen- 
sation for  the  breach,  and  that  sum  is  not  disproportionate 
to  the  presumable  loss,  it  may  be  recovered  as  liquidated 
damages.  These  are  the  general  principles  laid  down  in  the 
text-books  and  recognized  in  the  judicial  reports  of  this  State. 
Cheddick's  Executor  v.  Marsh,  1  Zab.  463 ;  Whitefield  v. 
Levy,  6  Vroom,  149  ;  Hoagland  v.  Segur,  9  Id.  230 ;  Lan- 
sing v.  Dodd,  16  Id.  525. 

In  the  present  case  the  default  consists  of  the  breach  of  a 
single  covenant,  to  complete  the  grand  stand  as  described  in 
the  approved  plans  and  specifications  within  the  time  limited. 
It  is  plain  that  the  loss  to  result  from  such  a  breach  is  not 
easily  ascertainable.  The  magnitude  and  importance  of  the 
grand  stand  maybe  inferred  from  its  cost  —  $133,000.  It 
formed  a  necessar}-  part  of  a  very  expensive  enterprise.  The 
structure  was  not  one  that  could  be  said  to  have  a  definable 
rental  value.  Its  worth  depended  upon  the  success  of  the 
entire  venture.  How  far  the  non-completion  of  this  edifice 
might  affect  that  success,  and  what  the  profits  or  losses  of 
the  scheme  would  be,  were  topics  for  conjecture  only.  The 
conditions  therefore  seem  to  have  been  such  as  to  justify  the 
parties  in  settling  for  themselves  the  measure  of  compensation. 

The  stipulations  of  parties  for  specified  damages,  on  the 
breach  of  a  contract  to  build  within  a  limited  time,  have  fre- 
quently been  enforced  by  the  courts.  In  Fletcher  v.  Dycke, 
2  T.  R.  32,  £10  per  week  for  delay  in  finishing  the  parish 
church;  in  Duckworth  v.  Alison,  1  Mees.  &  W.  412,  £5  per 
week  for  delay  in  completing  repairs  of  a  warehouse  ;  in  Legge 
v.  Harlock,  12  Q.  B.  1015,  £1  per  day  for  delay  in  erecting 
a  barn,  wagon-shed,  and  granary  ;  in  Law  v.  Local  Board  of 
Redditch,  (1892)  1  Q.  B.  127,  £100  and  £5  per  week  for 
delay  in  constructing  sewerage  works ;  in  Ward  v.  Hudson 
River  Building  Co.,  125  N.  Y.  230,  $10  a  day  for  delay  in 
erecting  dwelling-houses,  and  in  Malone  v.  City  of  Philadel- 
phia, 23  Atl.  Rep.  628,  $50  a  day  for  delay  in  completing  a 


MONMOUTH  PARK  ASSOC,  v.  WALLIS  IRON  WORKS.      49 

municipal  bridge,  were  all  deemed  liquidated  damages* 
Counsel  has  referred  us  to  two  cases  of  building  contracts, 
where  a  different  conclusion  was  reached  —  Muldoon  v. 
Lynch,  66  Cal.  536,  and  Clement  v.  Schuylkill  River  R.  R. 
Co.,  132  Pa.  445.  In  the  former  case  a  statutory  rule 
prevailed,  and  in  the  latter  the  real  damage  was  easily  as- 
certainable and  the  stipulated  sum  was  unconscionable.  In 
the  case  at  bar,  we  have  no  data  for  saying  that  $100  a  day 
was  unconscionable. 

The  sole  question  remaining  on  this  exception,  therefore, 
is  whether  the  parties  have  agreed  upon  the  sum  named  as 
liquidated  damages. 

Their  language  seems  indisputably  to  have  this  meaning. 
They  expressly  declare  the  sum  to  be  agreed  upon  as  the 
damages  which  the  defendant  will  suffer ;  they  expressly 
deny  that  they  mean  it  as  a  penalty,  and  they  provide  for 
its  deduction  and  retention  by  the  defendant  in  a  mode  which 
could  be  applied  only  if  the  sum  be  considered  liquidated 
damages. 

But  it  is  argued  that,  as  the  contract  authorized  the  en- 
gineer of  the  defendant  to  make  any  alterations  or  additions 
that  he  might  find  necessary  during  the  progress  of  the  struc- 
ture, and  required  the  plaintiff  to  accede  thereto,  it  is  un- 
reasonable to  suppose  that  the  plaintiff  could  have  intended 
to  bind  itself  in  liquidated  damages  for  delay  in  completing 
such  a  changeable  contract. 

But  this  argument  seems  to  be  aside  from  the  present 
inquiry,  which  is,  not  whether  the  plaintiff  became  respon- 
sible for  damages  by  reason  of  the  non-completion  of  the 
grand  stand  on  the  day  named,  but  whether,  if  it  did  be- 
come so  responsible,  those  damages  are  liquidated  by  the 
contract.  On  the  question  first  stated,  changes  ordered  by 
the  engineer  may  afford  matter  for  consideration  ;  on  the 
second  question,  they  are  irrelevant. 

Certainly  the  bills  of  exceptions  do  not  indicate  any  altera- 
tions or  additions  which,  as  matter  of  law,  would   relieve 

the  plaintiff  from  responsibility  for  the  admitted  delay,  and 

4* 


50  CASES  ON  DAMAGES. 

consequently  there  may  have  been  ground  for  considering  the 
defendant's  damages.  If  there  was,  the  amount  of  the  dam- 
ages was  adjusted  by  the  contract  at  &100  per  day. 

We  think  the  ruling  at  the   Circuit,  on  this  point,  was 
erroneous. 


MURPHY  v.  UNITED  STATES  FIDELITY  AND 
GUARANTY  CO. 

New  York  Appellate  Division,  1905.     100  App.  Div.  93. 

The  G.  K.  Perry  Stone  Co.  contracted  to  furnish  stone  to 
the  plaintiff  for  the  erection  of  the  Carnegie  Library  build- 
ing in  Syracuse.  The  stone  was  to  be  delivered  before 
August  1,  1902,  and  the  agreement  provided  that  if  the 
Perry  Company  should  fail  to  finish  the  work  within  the 
stipulated  period  it  should  pay  as  liquidated  damages  five 
dollars  per  day  "for  each  and  every  day  hereafter  the  said 
work  shall  remain  incomplete."  The  defendants  were  guar- 
antors of  the  performance  of  the  contract  by  the  Perry  Coru- 
pan}\  On  August  1,  1902,  only  a  small  portion  of  the  stone 
having  been  furnished,  the  Perrj'  Company  defaulted  and 
immediately  made  an  assignment  for  the  benefit  of  creditors. 
A  contract  for  supply  of  stone  was  made  by  the  plaintiff  with 
another  party  on  August  18,  the  defendant  having  failed  to 
undertake  performance.  Actual  damages  were  recovered  by 
the  plaintiff  in  the  Supreme  Court.1 

Spring,  J.  The  defendant  contends  that  the  stipulation 
in  the  agreement  with  the  Perry  Company  providing  for 
an  allowance  of  five  dollars  a  day  "  by  way  of  liquidated 
damages"  is  the  limit  of  the  plaintiff's  recover}'  and  is  a  sub- 
stitute for  compensation  for  any  actual  damages  which  he 
may  have  sustained.  In  order  to  construe  a  provision  of 
this  character  it  is  necessary  to  understand  the  situation  at 

1  This  short  statement  of  facts  is  substituted  for  the  statement  of 
the  Court.    Part  of  the  opinion  is  omitted. 


MURPHY  v.   U.  S.  FIDELITY  AND   GUARANTY   CO.        51 

the  time  of  the  execution  of  the  agreement  and  what  the 
parties  had  in  mind  by  it.  They  inserted  this  provision  in 
anticipation  of  the  full  performance  of  the  agreement.  If 
the  Perry  Company  carried  out  its  contract,  except  that  it 
was  not  completed  by  August  first,  the  damages  for  delay 
were  to  be  limited  to  the  stipulated  sum.  Neither  party  con- 
templated an  absolute  abandonment  of  the  work  by  the  Perry 
Company.  When  that  occurred  the  relations  of  the  parties 
changed.  There  was  an  ending  of  the  agreement  and  the  bur- 
den was  then  placed  upon  the  plaintiff  to  go  elsewhere  to  secure 
the  stone  which  was  to  be  furnished  by  the  Perry  Company. 
His  contractual  relations  with  that  corporation  had  ceased. 
On  the  other  hand,  had  it  performed  the  work  although  ex- 
tending beyond  the  prescribed  date  the  contract  would  have 
been  in  force.  By  its  terms  delay  in  performance  had  been 
anticipated  and  provided  for.  No  provision  had  been  made 
to  meet  the  unlooked-for  contingency  of  total  abandonment. 
The  bed  rock  of  the  stipulated  sum  "by  way  Of  liquidated 
damages"  was  the  ultimate  fulfillment  of  the  contract,  so 
that  the  rights  of  the  parties  could  be  gauged  by  that  instru- 
ment with  the  work  completed.  The  language  employed  is, 
"  Should  the  contractor  fail  to  finish  the  work  at  or  before 
the  time  agreed  upon  "  the  per  diem  allowance  is  to  be  paid 
"  for  each  and  everyday  hereafter  the  said  work  shall  remain 
incomplete"  unless  "delayed,"  etc.  The  only  reasonable 
interpretation  which  can  be  given  to  this  provision  is  the  one 
suggested,  that  the  liability  for  the  stipulated  sum  did  not 
accrue  until  the  contractor  had  fulfilled  his  agreement,  and, 
consequently,  it  cannot  be  available  to  bar  the  plaintiff  recov- 
ering the  damages  actually  sustained  by  him  on  account  of 
the  renunciation  of  the  agreement.  The  per  diem  allowance 
was  not  to  be  paid  in  lieu  of  performance,  but  upon  perform- 
ance after  the  time  fixed  in  the  agreement. 

In  each  of  the  cases  cited  by  the  counsel  for  the  appellant 
there  had  been  a  completion  of  the  contract,  or  else  the  con- 
troversy turned  on  the  question  whether  the  stipulated  sum 
was  intended  as  liquidated  damages  or  a  penalty  (Curtis  v. 


52  CASES   ON  DAMAGES. 

Van  Bergh,  161  N.  Y.  47 ;  Dunn  v.  Morgenthau,  73  App. 
Div.  147),  or  the  actual  damages  were  difficult  of  ascertain- 
ment, or  the  stipulated  amount  was  vastly  disproportionate 
to  the  loss.  (Ward  v.  Hudson  River  Building  Co.,  125  N.  Y. 
230.)  As  was  said  in  Phoenix  Ins.  Co.  v.  Continental  Ins. 
Co.  (87  N.  Y.  400,  405) :  "  The  rule,  deduced  from  the  au- 
thorities, is,  that  when  there  is  a  covenant  to  do,  or  not  to  do 
a  particular  act,  under  a  penalty,  the  covenantor  is  bound  to 
do,  or  refrain  from  doing,  the  very  thing,  unless  it  appears 
from  the  particular  language  construed  in  the  light  of  the 
surrounding  circumstances,  that  it  was  the  intention  of  the 
parties,  that  the  payment  of  the  penalty  should  be  the  price 
of  non-performance,  and  to  be  accepted  by  the  covenantee  in 
lieu  of  performance.  .  .  .  The  question  to  be  considered  is, 
what  was  the  primary  intent  of  the  agreement?  If  the  pri- 
roar}-  intent  was  that  the  covenant  should  be  performed,  the 
annexing  of  a  penalty  is  regarded  merely  as  security  for  the 
performance  of  the  covenant,  and  not  as  a  substitute  for  it." 


GOODYEAR  SHOE   MACHINERY   COMPANY  v. 
SELZ,   SCHWAB  &   CO. 

Illinois,  1895.     157  111.  186. 

Wilkin,  C.  J.1  Appellant  leased  to  appellee  certain  ma- 
chines, upon  which  it  held  letters  patent,  for  sewing  boots 
and  shoes.  .  .  .  The  fifth  paragraph  [of  the  lease]  is  in  the 
following  language. 

"  Fifth  — The  lessee  agrees  to  pa}-  unto  the  lessor,  as  rent 
for  the  machines  hereby  leased  and  as  royalty  for  the  use  of 
the  patents  hereby  licensed,  the  rent  or  royalty  specified  in 
the  schedule  forming  part  of  the  third  section  herein,  on  each 
pair  of  boots  or  shoes  of  the  respective  kinds  mentioned  or 
described  in  said  schedule,  made  by  the  aid  of  said  machines 
or  an}-  one  of  them,  or  by  the  use  of  the  said  patents  or  any 
of  them,  the  rents  and  royalties  for  such  boots  and  shoes 
1  Part  of  the  opinion  is  omitted. 


GOODYEAR  SHOE  MACH.  CO.  v.  SELZ,  SCHWAB  &  CO.      53 

made,  as  aforesaid,  during  one  calendar  month  to  be  due  and 
payable  on  the  first  da}-  of  the  calendar  month  next  follow- 
ing, and  to  be  paid  within  one  month  from  that  day ;  but  the 
lessor  hereby  agrees  that  if  the  rents  and  royalties  due  on  the 
first  day  of  any  month  shall  be  paid  on  or  before  the  fifteenth 
day  of  that  month,  it  will,  in  consideration  thereof,  grant  a 
discount  of  fifty  per  cent  from  the  rents  and  royalties  speci- 
fied in  the  schedule  aforesaid  ;  and  the  lessee  further  agrees 
to  pay,  while  it  shall  retain  possession  of  the  machines  hereby 
leased,  all  taxes  thereon,  to  whomsoever  laid  or  assessed."  .  .  . 

Appellant's  construction  of  the  instrument  sued  on,  applied 
to  the  facts  alleged  in  the  declaration,  is,  that  on  the  first  day 
of  October,  1891,  the  defendant  owed  and  was  liable  to  pay 
the  plaintiff  $1198.53  (the  full  schedule  rates  named  in  para- 
graph 3),  payable  on  the  first  day  of  November,  with  the 
provision  that  if  the  defendant  chose  to  pay  in  advance,  any 
time  between  October  1  and  15,  it  should  be  allowed  to  dis- 
charge the  debt  by  paying  one-half  of  it.  Appellee  insists 
that  the  debt  on  October  1  was  $599.27,  — fifty  per  cent  of 
the  schedule  rate,  —  the  other  fifty  per  cent  being  by  way  of 
damages  if  payment  of  the  sum  actually  due  was  not  made 
on  or  before  October  15. 

The  following  propositions  seem  to  be  sustained  by  the 
authorities:  "Where  a  large  sum,  which  is  not  the  actual 
debt,  is  agreed  to  be  paid  in  case  of  a  default  in  the  payment 
of  a  lesser  sum  which  is  the  actual  debt,  such  larger  sum 
is  always  a  penalty.  But  the  rule  is  otherwise  where  a  less 
sum  is  to  be  taken  for  a  greater  if  paid  at  a  certain  time." 
(5  Am.  &  Eng.  Ency.  of  Law,  26.)  "  Where  the  larger  sum 
mentioned  is  the  actual  debt,  and  a  smaller  sum  has  been 
agreed  upon  as  a  release  if  paid  under  stated  conditions, 
the  failure  to  comply  with  the  easier  terms  gives  the  creditor 
the  right  to  enforce  payment  of  the  larger  sum."  In  doubtful 
cases  courts  are  inclined  to  treat  the  stipulation  as  a  penalty. 
(Ibid.  27.) 

The  controlling  question  in  the  case  then  is,  what  did  the 
parties  intend  should  be  the  actual  rental  for  the  machines  — ■ 


54  CASES   ON  DAMAGES. 

which  sum  was  to  be  the  actual  debt?  Manifestly',  the  drafts- 
man of  the  lease  intended  it  to  be  susceptible  of  the  construc- 
tion placed  upon  it  by-  appellant,  but  it  by  no  means  follows 
that  the  parties  who  executed  it  so  understood  it  or  should  be 
bound  by  that  construction.  "We  cannot  construe  the  fifth 
paragraph  as  providing  for  a  discount  for  prepayment  of  the 
debt.  That  a  discount  of  fifty-  per  cent  should  be  made  on 
the  debt  for  a  prepayment  of  about  fifteen  days  is  contrary  to 
all  business  experience,  and  most  unreasonable.  The  rent 
accruing  for  one  month  became  due  and  payable  on  the  first 
day  of  the  calendar  month  following.  Certainly  the  parties 
did  not  intend  that  there  should  be  then  due  and  payable 
more  than  fifty  per  cent  of  the  schedule  rate.  Only  that 
amount  was  payable  at  any'  time  between  the  first  and  fif- 
teenth of  the  month.  It  is  to  be  presumed  that  it  was  the 
intention  of  the  parties  to  secure  to  the  lessor  the  payment  of 
reasonable  compensation  for  the  use  of  its  machines,  and  no 
more.  That  compensation  could  not  be  one  dollar  if  paid  on 
the  fifteenth,  but  double  that  amount  if  paid  the  next  day. 
Therefore,  to  hold  that  it  was  intended,  in  a  case  like  this, 
that  the  rent  should  be  $599.27  one  day  and  $1198.53  the 
next,  except  as  an  inducement  to  prompt  payment  of  the 
lesser  sum,  is  unreasonable. 

Our  conclusion  is,  that  the  fifth  clause  of  the  instrument 
should  be  construed  as  requiring  the  payment  of  fifty  per 
cent  of  the  rent  or  royalty  specified  in  the  schedule  for  all 
boots  and  shoes  made  during  one  month,  to  be  due  and  pay- 
able on  the  first  day  of  the  next,  and  if  not  paid  on  or  before 
the  fifteenth  of  that  month,  the  whole  amount  of  the  schedule 
rates  to  become  payable.  In  other  words,  by  the  terms  of 
the  contract,  properly  construed,  the  actual  debt  was  the 
$599.27,  and  the  agreement  to  pay  double  the  amount  is  in 
the  nature  of  a  penalty  to  insure  the  prompt  payment  of  the 
sum  actually  agreed  to  be  paid.  Longworth  v.  Askran,  15 
Ohio  St.  370,  is  an  authority  sustaining  this  construction  of 
the  lease. 


BURGOON  v.  JOHNSON.  55 


BURGOON  v.  JOHNSON. 
Pennsylvania,  1899.     194  Pa.  61. 

Brown,  J.1  Dr.  Johnson,  a  physician  who  had  been  suf- 
fering from  a  sore  on  his  face,  called  upon  Dr.  Burgoon  of 
whom  he  said  he  had  heard  as  a  specialist  in  several  diseases, 
for  the  purpose  of  being  treated,  and  the  only  question  before 
us  is  whether  if  Burgoon's  version  of  the  contract  or  agree- 
ment between  them  be  true,  he  is  entitled  to  recover  the  sum 
sued  for.  When  Burgoon,  professing  to  be  a  specialist,  met 
Dr.  Johnson  who  had  sought  his  help,  both  agree  that  the 
latter  insisted  upon  knowing  what  the  charge  would  be  for 
the  treatment,  and  Burgoon  testified  that  he  said  he  would 
require  in  the  event  of  a  cure  either  a  certificate  from  Johnson 
of  his  skill  and  proficiency  as  a  specialist  in  the  treatment  of 
the  trouble  from  which  his  patient  had  suffered,  or  $5,000,  in 
cash.  Assuming  this  to  be  true,  did  the  court  below  properly 
instruct  the  jury  that  in  its  judgment  the  contract  would  make 
the  $5,000  a  penalty  which  could  not  be  recovered?  If  this 
sum  is  to  be  considered  as  a  penalty,  the  instruction  was 
correct.   .  .  . 

Johnson  was  himself  a  physician,  seeking  cure  for  his  ail- 
ment at  the  hands  of  another.  He  was  not  the  ordinary 
patient  calling  upon  a  specialist,  but  a  member  himself  of  the 
medical  profession,  knowing  according  to  his  own  testimony 
what  his  trouble  was,  and  presumed  to  know  what  would  be 
a  proper  charge  for  the  services  to  be  rendered  —  what  he 
himself  might  ask  —  and  no  matter  what  our  judgment  might 
be  under  different  conditions,  we  cannot  approve  the  view  of 
the  court  below  that  the  $5,000  was  a  penalty.  If  Burgoon  is 
to  be  believed  it  was  an  alternative  mode  of  payment,  agreed 
upon  by  the  parties  capable  of  intelligently  entering  into  such 
a  contract,  and  the  first  assignment  of  error  is  sustained. 

1  Part  of  the  opinion  is  omitted. 


56  CASES  ON  DAMAGES. 

BROOKS  v.  CITY  OF  WICHITA. 

Circuit  Court  of  Appeals,  1902.     114  Fed.  297. 

The  Wichita  Railway  Light  and  Power  Company  contracted 
with  the  city  of  Wichita  to  furnish  150  arc  lights  and  have 
them  in  operation  by  April  1,  1899.  To  secure  the  perform- 
ance of  the  agreement  they  deposited  with  the  cit}-  $10,000, 
to  be  treated  as  liquidated  damuges  in  case  of  failure  to  fur- 
nish the  lights,  because  the  actual  damages  could  not  be 
accurately  ascertained.  The  lights  were  not  furnished. 
Plaintiff,  alleging  that  he  was  the  equitable  owner  of  the 
money,  prayed  for  an  accounting.1 

Caldwell,  Circ.  J.  Waiving  any  consideration  of  the 
question  of  equitable  jurisdiction,  concerning  which  there  may 
be  some  doubt,  owing  to  the  equitable  character  of  the  plain- 
tiff's alleged  claim  to  the  fund,  we  will  proceed  to  dispose  of 
the  case  on  its  merits. 

By  the  express  terms  of  the  contract,  if  the  150  arc  lights 
were  not  put  up  and  in  operation  within  the  time  limited,  the 
company  was  to  forfeit  and  pay  to  the  city,  "as  liquidated 
damages,  and  not  as  a  penalty,  the  sura  of  ten  thousand  dol- 
lars now  on  deposit  with  the  city  treasurer  of  the  city  of 
Wichita."  Cases  of  penal  bonds  between  private  persons, 
where  the  damages  resulting  from  a  breach  are  readily  ascer- 
tainable, have  no  application  to  this  case.  A  city  is  a  public 
corporation  designed  for  local  government.  It  is  an  agency 
of  the  state  to  assist  in  the  civil  government  of  the  territory 
and  people  of  the  state  embraced  within  its  limits.  It  has 
no  private  interests.  It  is  a  public  agency,  and  acts  for  the 
public ;  and  when  it  contracts  for  the  establishment  and 
maintenance  by  a  private  corporation  of  waterworks,  gas  or 
electric  lights,  street  railroads,  and  other  like  public  utilities, 
it  does  so  in  the  performance  of  its  public  functions,  and  for 

1  The  statement  of  facts  has  been  abridged  and  part  of  the  opinion 
omitted. 


BROOKS  v.  CITY  OF  WICHITA.  57 

the  purpose  of  promoting  the  convenience  and  preserving  the 
health  of  its  citizens,  and  protecting  them  in  their  persons 
and  property.  And  when  a  private  corporation  which  has 
engaged  with  the  cit}r  to  construct  and  maintain  one  of  these 
public  utilities  —  as  in  the  case  at  bar,  to  light  the  public 
streets  of  the  cit}r  —  fails  to  comply  with  its  contract  in  that 
regard,  the  city  in  its  corporate  capacity  does  not  suffer  any 
loss  or  damage  capable  of  judicial  ascertainment.  Nor  is  the 
inconvenience  and  loss  suffered  by  the  public,  on  whose  behalf 
and  for  whose  benefit  and  protection  the  contract  was  made, 
capable  of  ascertainment.  The  loss  and  damage  sustained 
by  the  public,  however  great  it  may  be,  in  the  loss  of  health 
or  life  or  the  destruction  of  property,  is  too  remote,  conject- 
ural, and  speculative  to  be  made  the  basis  of  recoverj'  in  such 
cases.  Clark  v.  Barnard,  108  U.  S.  436,  459,  460,  2  Sup. 
Ct.  878,  27  L.  Ed.  780.  For  this  reason  it  is  common  for 
municipal  corporations,  in  making  contracts  of  this  character, 
to  stipulate  for  the  payment  of  a  fixed  sum  as  liquidated 
damages  in  case  the  public  utility  is  not  constructed  and  put 
in  operation  within  the  time  limited  by  the  contract.  Nilson 
v.  Town  of  Jonesboro,  57  Ark.  168,  20  S.  W.  1093.  This  is 
the  only  method  by  which  the  city  can  obtain  anything  like 
an  adequate  compensation  for  the  loss  and  damage  sustained 
by  the  public  by  the  breach  of  such  a  contract.  The  sum 
forfeited  as  liquidated  damages  goes  into  the  treasury,  and 
inures  to  the  benefit  of  the  public.  The  contract  in  this  case 
does  not  stop  with  declaring  that  the  sum  of  $10,000  has 
been  agreed  upon  between  the  parties  as  liquidated  damages 
in  case  of  its  breach,  but  it  contains  the  further  and  some- 
what unusual  provision  that  they  have  agreed  upon  this  sum 
"  for  the  reason  that  the  actual  damages  sustained  by  the 
said  city  in  case  of  a  breach  of  this  contract  cannot  be  defi- 
nitely or  accurately  ascertained  or  computed."  This  clause  of 
the  contract  evinces  a  knowledge  on  the  part  of  the  contract- 
ing parties  of  the  rules  of  law  to  which  we  have  adverted, 
and  which  preclude  a  city  from  recovering  substantial  damages 
in  this  class  of  cases  unless  they  are  liquidated  by  the  agree- 


58  CASES  ON  DAMAGES. 

ment  of  the  parties.  It  was  the  knowledge  of  this  fact  that 
led  the  parties  to  this  contract  to  agree  on  the  damages  for 
its  breach,  and  this  is  conclusive  evidence  that  they  intended 
what  they  expressed  in  their  contract,  namely,  that  the  sum 
agreed  upon  was  "  liquidated  damages,  and  not  a  penalty." 
If  this  provision  of  the  contract  does  not  mean  what  it  says, 
then  it  does  not  mean  anything ;  and,  when  the  company 
failed  to  put  up  and  operate  the  arc  lights  within  the  time 
limited  by  the  contract,  all  that  remained  to  be  done  was  for 
the  city  to  cancel  the  contract,  and  hand  back  to  the  company 
the  $10,000  it  had  been  at  such  pains  to  exact.  Such  an 
interpretation  of  the  contract  violates  the  clearly  expressed 
and  actual  intention  of  the  parties,  is  in  the  teeth  of  its  plain 
provisions,  and  makes  the  deposit  of  the  $10,000  a  vain  and 
useless  act.   .  .  . 

It  is  needless  to  say  that  a  court  of  equity,  no  more  than 
a  court  of  law,  can  relieve  a  party  from  his  obligation  to  pay 
liquidated  damages.  When  it  is  once  settled  that  the  damages 
are  liquidated,  it  is  then  settled  that  they  are  not  a  penalty. 
A  court  of  equity  can  no  more  relieve  from  the  obligation  to 
pay  liquidated  damages  than  it  can  relieve  from  the  obliga- 
tion to  pay  a  promissory  note  executed  upon  sufficient 
consideration. 


SUN  PRINTING  AND  PUBLISHING  ASSOCIATION 
v.  MOORE. 

Supreme  Court  of  the  United  States,  1902.     183  U.  S.  642. 

The  yacht  Kanapaha,  property  of  the  respondent  Moore, 
was  let  on  April  1,  1898,  for  the  term  of  two  months  to  the 
Sun  Association  for  the  purpose  of  gathering  news  in  Cuban 
waters  during  the  hostilities  between  the  United  States  and 
Spain.  The  agreement  provided  that  "for  the  purpose  of 
this  charter  the  value  of  the  yacht  shall  be  considered  and 
taken  at  the  sum  of  seventy-five  thousand  dollars,"  and  that 
the  hirer  would  surrender  the  yacht  at  the  end  of  the  term  in 


SUN  PKINTING  &  PUBLISHING  ASSOCIATION  v.  MOORE.       59 

as  good  condition  as  at  the  start,  fair  wear  and  tear  excepted. 
The  yacht  was  wrecked  before  return  to  the  owner,  and  this 
libel  in  personam  was  filed  to  recover  her  value.  The  Cir- 
cuit Court  of  Appeals  reversed  a  decree  of  the  District  Court 
and  remanded  the  cause  with  instructions  to  enter  a  decree 
for  $75,000,  with  interest  and  costs.  The  case  was  then 
brought  to  the  Supreme  Court  by  certiorari.1 

White,  J.  Upon  the  trial,  The  Sun  Association  intro- 
duced some  evidence  tending  to  show  that  the  value  of  the 
yacht  was  a  less  sum  than  $75,000,  and  it  claimed  that  the 
recovery  should  be  limited  to  such  actual  damage  as  might 
be  shown  by  the  proof.  The  trial  judge,  however,  refused 
to  hear  further  evidence  offered  on  this  subject,  and  in  decid- 
ing the  case  disregarded  it  altogether.  The  rulings  in  this 
particular  were  made  the  subject  of  exception  and  error  was 
assigned  in  relation  thereto  in  the  Circuit  Court  of  Appeals. 
That  court  held  that  the  value  fixed  in  the  contract  was  con- 
trolling, especially  in  view  of  the  fact  that  a  yacht  had  no 
market  value.  .  .  . 

The  decisions  of  this  court  on  the  doctrine  of  liquidated 
damages  and  penalties  lend  no  support  to  the  contention 
that  parties  may  not  bond  fide,  in  a  case  where  the  damages 
are  of  an  uncertain  nature,  estimate  and  agree  upon  the 
measure  of  damages  which  may  be  sustained  from  the  breach 
of  an  agreement.  On  the  contrary,  this  court  has  consist- 
ently maintained  the  principle  that  the  intention  of  the  par- 
ties is  to  be  arrived  at  by  a  proper  construction  of  the 
agreement  made  between  them,  and  that  whether  a  particular 
stipulation  to  pay  a  sum  of  money  is  to  be  treated  as  a  pen- 
alty, or  as  an  agreed  ascertainment  of  damages,  is  to  be 
determined  by  the  contract,  fairly  construed,  it  being  the 
duty  of  the  court  always,  where  the  damages  are  uncertain 
and  have  been  liquidated  by  an  agreement,  to  enforce  the 
contract.   .   .   . 

It  may,  we  think,  fairly  be  stated  that  when  a  claimed  dis- 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  Court. 
Part  of  the  opinion  is  omitted. 


60  CASES  ON  DAMAGES. 

proportion  has  been  asserted  in  actions  at  law,  it  has  usually 
been  an  excessive  disproportion  between  the  stipulated  sum 
and  the  possible  damages  resulting  from  a  trivial  breach 
apparent  on  the  face  of  the  contract,  and  the  question  of 
disproportion  has  been  simply  an  element  entering  into  the 
consideration  of  the  question  of  what  was  the  intent  of  the 
parties,  whether  bona  fide  to  fix  the  damages  or  to  stipulate 
the  payment  of  an  arbitrary  sum  as  a  penalty,  by  way  of 
security. 

In  the  case  at  bar,  aside  from  the  agreement  of  the  parties, 
the  damage  which  might  be  sustained  by  a  breach  of  the 
covenant  to  surrender  the  vessel  was  uncertain,  and  the  un- 
ambiguous intent  of  the  parties  was  to  ascertain  and  fix  the 
amount  of  such  damage.  In  effect,  however,  the  effort  of 
the  petitioner  on  the  trial  was  to  nullify  the  stipulation  in 
question  by  mere  proof,  not  that  the  parties  did  not  intend  to 
fix  the  value  of  the  yacht  for  all  purposes,  but  that  it  was 
improvident  and  unwise  for  its  agent  to  make  such  an  agree- 
ment. Substantially,  the  petitioner  claimed  a  greater  right 
than  it  would  have  had  if  he  had  made  application  to  a  court 
of  equity  for  relief,  for  it  tendered  in  its  answer  no  issue 
concerning  a  disproportion  between  the  agreed  and  actual 
value,  averred  no  fraud,  surprise  or  mistake,  and  stated  no 
facts  claimed  to  warrant  a  reformation  of  the  agreement. 
Its  alleged  right  to  have  eliminated  from  the  agreement  the 
clause  in  question,  for  that  is  precisely  the  logical  result  of 
the  contention,  was  asserted  for  the  first  time  at  the  trial  by 
an  offer  of  evidence  on  the  subject  of  damages. 

The  law  does  not  limit  an  owner  of  property,  in  his  deal- 
ings with  private  individuals,  respecting  such  property,  from 
affixing  his  own  estimate  of  its  value  upon  a  sale  thereof,  or 
on  being  solicited  to  place  the  property  at  hazard  by  deliver- 
ing it  into  the  custody  of  another  for  employment  in  a  peril- 
ous adventure.  If  the  would-be  buyer  or  lessee  is  of  the 
opinion  that  the  value  affixed  to  the  property  is  exorbitant, 
he  is  at  liberty  to  refuse  to  enter  into  a  contract  for  its  ac- 
quisition.     But  if  he  does  contract  and  has  induced  the 


CLYDEBANK  SHIP.  CO.  v.  YZQUIERDO  Y  CASTANEDA.       61 

owner  to  part  with  his  property  on  the  faith  of  stipulations 
as  to  value,  the  purchaser  or  hirer,  in  the  absence  of  fraud, 
should  not  have  the  aid  of  a  court  of  equity  or  of  law  to  re- 
duce the  agreed  value  to  a  sum  which  others  may  deem  is  the 
actual  value.   .   . 

As  the  stipulation  for  value  referred  to  was  binding  upon 
the  parties,  the  trial  court  rightly  refused  to  consider  evidence 
tending  to  show  that  the  admitted  value  was  excessive,  and 
the  Circuit  Court  of  Appeals  properly  gave  effect  to  the 
expressed  intention  of  the  parties. 

The  decree  of  the  Circuit  Court  of  Appeals  was  right,  and 

it  is  therefore 

Affirmed. 


CLYDEBANK   ENGINEERING  AND  SHIPBUILDING 
COMPANY  v.  YZQUIERDO   Y  CASTANEDA. 

House  of  Lords  (Scotch  Appeal),  1904.     1905,  A.  C.  6. 

Appeal  against  a  judgment  of  the  Second  Division  of  the 
Court  of  Session,  Scotland. 

The  Spanish  government,  represented  by  the  respondents, 
sought  to  recover  from  the  appellants  the  penalties  alleged  to 
have  been  incurred  by  the  appellants  under  a  contract  for  the 
construction  of  two  torpedo-boat  destroyers.  The  contract 
contained  this  clause:  "The  penalty  for  later  delivery  shall 
be  at  the  rate  of  £500  per  week  for  each  vessel  not  delivered 
by  the  contractors  in  the  contract  time."  The  vessels  were 
not  delivered  until  several  months  later  than  the  agreed  time.1 

Lord  Robertson.  My  Lords,  I  agree  that  these  judg- 
ments ought  to  be  affirmed. 

This  clause,  sought  to  be  enforced,  is  not  a  general  penalty 
clause,  but  a  specific  agreement  that  sums  of  money,  gradu- 
ated according  to  time,  shall  be  paid  as  penalties  for  delays 
in  delivering. these  vessels.  Now  the  Court  can  only  refuse  to 
enforce  performance  of  this  pecuniary  obligation  if  it  appears 

i  The  statement  of  facts  has  been  much  condensed.  Concurring  opin- 
ions of  Earl  of  Halsbury,  L.  C.,  and  Lord  Davey  are  omitted. 


62  CASES  ON  DAMAGES. 

that  the  payments  specified  were  —  I  am  using  the  language 
of  Lord  Kyllachy —  "merely  stipulated  in  terrorem,  and 
could  not  possibly  have  formed  "  "  a  genuine  pre-estimate  of 
the  creditor's  probable  or  possible  interest  in  the  due  per- 
formance of  the  principal  obligation." 

Now,  all  such  agreements,  whether  the  thing  be  called 
penalty  or  be  called  liquidate  damage,  are  in  intention  and 
effect  what  Professor  Bell  calls  "  instruments  of  restraint," 
and  in  that  sense  penal.  But  the  clear  presence  of  this  ele- 
ment does  not  in  the  least  degree  invalidate  the  stipulation. 
The  question  remains,  Had  the  respondents  no  interest  to 
protect  by  that  clause,  or  was  that  interest  palpably  incom- 
mensurate with  the  sums  agreed  on  ?  It  seems  to  me  that  to 
put  this  question,  in  the  present  instance,  is  to  answer  it- 
Unless  injury  to  a  State  is  as  matter  of  law  inexpressible  in 
money,  Spain  was  or  might  be  deeply  interested  in  the  early 
delivery  of  these  ships  and  deeply  injured  by  delay. 

To  my  thinking,  Lord  Moncreiff  has,  in  two  sentences, 
admirably  stated  the  case  :  "  The  subject-matter  of  the  con- 
tracts, and  the  purposes  for  which  the  torpedo-boat  destroy- 
ers were  required,  make  it  extremely  improbable  that  the 
Spanish  Government  ever  intended  or  would  have  agreed  that 
there  should  be  inquhyT  into,  and  detailed  proof  of,  damage 
resulting  from  delay  in  delivery.  The  loss  sustained  by  a  bel- 
ligerent, or  an  intending  belligerent,  owing  to  a  contractor's 
failure  to  furnish  timeously  warships  or  munitions  of  war, 
does  not  admit  of  precise  proof  or  calculation  ;  and  it  would 
be  preposterous  to  expect  that  conflicting  evidence  of  naval 
or  military  experts  should  be  taken  as  to  the  probable  effect 
on  the  suppression  of  the  rebellion  in  Cuba  or  on  the  war  with 
America  of  the  defenders'  delay  in  completing  and  deliver- 
ing those  torpedo-boat  destroyers." 

The  appellants'  counsel  frankly  maintained  that  the  delay 
merely  saved  the  Spanish  Government  so  much  expense,  as 
vessels  of  war  do  not  earn  freight  —  an  argument  which 
would  be  equally  applicable  to  the  case  of  the  vessels  never 
being  delivered  at  all,  so  that  a  total  breach  of  the  contract 


CLYDEBANK  SHIP.  CO.  v.  YZQUIERDO  Y  CASTANEDA.       63 

would  be  a  positive  good  in  itself.  But,  in  truth,  the  only 
apparent  difficulty  in  the  present  ease  arises  from  the  magni- 
tude and  complexit}'  of  the  interests  involved  and  of  the 
vicissitudes  affecting  them,  and  as  the  question  is  whether 
this  stipulation  of  500/.  a  week  is  unconscionable  or  exorbi- 
tant, these  considerations  can  hardly  be  considered  a  formi- 
dable difficulty  in  the  way  of  the  respondents. 

On  the  question  of  waiver  I  must  sa}'  I  think  the  appel- 
lants' case  completely  fails ;  and  this  matter  is  very  ade- 
quately dealt  with  by  the  Lord  ordinary. 

Ordered,  that  the  appeal  be  dismissed  with  costs. 


CHAPTER  IV. 

NOMINAL  DAMAGES. 


WOOD  v.  WAUD. 

Exchequer,  1849.     3  Ex.  748. 

Pollock,  C.B.1  The  fact,  as  found  by  the  jury,  is,  that 
the  defendants  (whose  works  have  been  erected  within  twenty 
years,  and  who  have  no  right,  by  long  enjoyment  or  grant, 
so  to  do)  have  fouled  the  water  oi  the  natural  stream  b}T 
pouring  in  soap  suds,  woolcombers'  suds,  &c. ;  but  that 
pollution  of  the  natural  stream  has  done  no  actual  damage 
to  the  plaintiffs,  because  it  was  already  so  polluted  by  similar 
acts  of  millowners  above  the  defendants'  mills,  and  b}-  dyers 
still  further  up  the  stream,  and  some  sewers  of  the  town  of 
Bradford  ;  that  the  wrongful  act  of  the  defendants  made  no 
practical  difference,  that  is,  that  the  pollution  by  the  defend- 
ants did  not  make  it  less  applicable  to  useful  purposes  than 
such  water  was  before.  We  think,  notwithstanding,  that  the 
plaintiffs  have  received  damage  in  point  of  law.  The}'  had  a 
right  to  the  natural  stream  flowing  through  the  land,  in  its 
natural  state,  as  an  incident  to  the  right  to  the  land  on  which 
the  watercourse  flowed,  as  will  be  hereafter  more  fully 
stated  ;  and  that  right  continues,  except  so  far  as  it  may 
have  been  derogated  from  by  user  or  by  grant  to  the 
neighboring  landowners. 

This  is  a  case,  therefore,  of  an   injur}'  to  a  right.     The 

defendants,  by  continuing   the   practice  for  twenty  years, 

might  establish  the  right  to  the  easement  of  discharging  into 

the  stream  the  foul  water  from  their  works.      If  the   dye- 

1  Part  of  the  opinion  only  is  give? 


WOOD  v.  WAUD.  65 

works  and  other  manufactories,  and  other  sources  of  pollu- 
tion above  the  plaintiffs,  should  be  afterwards  discontinued, 
the  plaintiffs,  who  would  otherwise  have  had,  in  that  case, 
pure  water,  would  be  compellable  to  submit  to  this  nuisance, 
which  then  would  do  serious  damage  to  them.  We  think, 
therefore,  that  the  verdict  must  be  entered  for  the  plaintiffs 
on  every  part  of  not  guilty  to  the  first  count.1 

1  It  is  said,  however,  de  minimis  non  curat  lex.  This  maxim  is  never 
applied  to  the  positive  and  wrongful  invasion  of  another's  property.  To 
warrant  an  action  in  such  case,  says  a  learned  writer,  "  some  temporal 
damage,  he  it  more  or  less,  must  actually  have  resulted,  or  must  be  likely  to 
ensue.  The  degree  is  wholly  immaterial ;  nor  does  the  law,  upon  every 
occasion,  require  distinct  proof  that  an  inconvenience  has  been  sustained. 
For  example,  if  the  hand  of  A.  touch  the  person  of  B.,  who  shall  declare 
that  pain  has  or  has  not  ensued?  The  only  mode  to  render  B.  secure  is  to 
infer  that  an  inconvenience  has  actually  resulted."  (Hamm.  N.  P.  39,  Am. 
cd.  of  1823.)  "Where  a  new  market  is  erected  near  an  ancient  one,  the 
owner  of  the  ancient  market  may  have  an  action  ;  and  yet,  perhaps,  the 
cattle  that  would  have  come  to  the  old  market  might  not  have  been  sold, 
and  so  no  toll  would  have  been  gained,  and  consequently  there  would  have 
been  no  real  damage;  but  there  is  a  possibility  of  damage."  (2  Ld.  Baym. 
948.)  In  Ashby  v.  White,  wherein  Powell,  J.  laid  down  this  rule  as  to  the 
market,  it  was  held  finally  by  the  House  of  Lords  that  to  hinder  a  burgess 
from  voting  for  a  member  of  the  House  of  Commons  was  a  good  ground  of 
action.  No  one  could  say  that  he  had  been  actually  injured  or  would  be  ; 
so  far  from  it,  the  hindrance  might  have  benefited  him.  But  his  franchise 
had  been  violated.  The  owner  of  a  horse  might  be  benefited  by  a  skilful 
rider  taking  the  horse  from  the  pasture  and  using  him  ;  yet  the  law  would 
give  damages,  and,  under  circumstances,  very  serious  damages,  for  such  an 
act.  The  owner  of  a  franchise,  as  well  as  of  other  property,  has  a  right 
to  exclude  all  persons  from  doing  anything  by  which  it  may  possibly  be 
injured.  The  rule  is  necessary  1^<- the  general  protection  of  property; 
and  a  greater  evil  could  scarcely  befall  a  country  than  the  rule  being 
frittered  away  or  relaxed  in  the  least,  under  the  idea  that  though  an  ex- 
clusive right  be  violated,  the  injury  is  trifling,  or  indeed  nothing  at 
all.  —  Cowen,  J.,  in  Seneca  Road  v.  Auburn  and  Rochester  Railroad,  5 
Hill,  170,  175. 


66  CASES  ON  DAMAGES. 

HIBBARD   v.   WESTERN   UNION   TELEGRAPH  CO. 

Wisconsin,  1873.     33  Wis.  558. 

Action  to  recover  damages  alleged  to  have  accrued  to 
plaintiffs  by  reason  of  defendant's  failure  to  deliver  a  tele- 
graphic despatch.  Trial  by  the  court  without  a  jury.  The 
court  held  that  defendant  was  guilty  of  negligence  in  failing 
to  deliver  such  message,  and  became  liable  to  plaintiffs  for 
any  damages  sustained  by  them  ;  but  that  "  no  injury  had 
been  sustained  by  plaintiffs  which  the  court  could  com- 
pute in  damages,"  and  judgment  was  accordingly  entered  for 
defendant.     From  this  judgment  the  plaintiffs  appealed. 

Cole,  J.1  It  is  apparent  that  in  this  case  there  was  a 
technical  breach  of  contract  on  the  part  of  the  company,  for 
which  the  plaintiffs  were  entitled  to  recover  nominal  damages. 
But  this  would  be  the  extent  of  the  recovery.  A  judgment 
for  nominal  damages  would  not  have  carried  costs,  because 
the  action  might  have  been  brought  in  a  justice's  court.  The 
despatch  was  to  be  paid  for  on  delivery  in  Milwaukee  ;  but, 
as  it  was  never  delivered,  the  plaintiffs  were  at  no  expense 
for  its  transmission.  And  while  the  County  Court  was  wrong 
in  not  rendering  judgment  for  the  plaintiffs  for  nominal 
damages,  yet,  in  a  case  like  the  present,  this  constitutes  no 
ground  for  a  reversal  of  the  judgment.  This  point  was  so 
ruled  in  Laubenheimer  v.  Mann,  19  Wis.  519;  and  the 
doctrine  of  that  case  was  approved  in  Eaton  v.  Lyman,  30 
Wis.  41,  and  in  Jones  v.  King,  33  Wis.  422.  According  to 
the  rule  laid  down  and  approved  in  these  decisions,  the 
judgment  in  the  present  case  must  be  affirmed. 

By  the  Court.  —  It  is  so  ordered. 

1  Part  of  the  opinion  is  omitted. 


LEEDS  v.  METROPOLITAN  GAS-LIGHT  CO.  67 

LEEDS   v.   METROPOLITAN   GAS-LIGHT   CO. 

New  York,  1882.     90  N.  Y.  26. 

Finch,  J.  We  think  there  was  error  in  the  mode  of  sub- 
mitting to  the  jury  the  question  of  damages.  Whether  there 
was  an}r  evidence  of  negligence  on  the  part  of  the  defendant 
company  upon  which  the  verdict  can  rest,  has  been  the 
principal  controversy  on  the  appeal,  but  need  not  be  decided, 
since  upon  the  new  trial  which  must  result  the  facts  may  be 
entirely  different.  If  the  evidence  is  insufficient  now,  it  is 
possible  that  it  may  be  made  sufficient  then. 

The  plaintiff  was  injured  by  an  explosion  of  gas  in  the 
cellar  or  vault  of  the  house  occupied  by  him,  and  which  had 
escaped  from  a  break  in  the  defendant's  main.  The  char- 
acter of  his  injuries  was  described  by  the  evidence,  and 
among  other  things  it  was  proved  that  he  was  engaged  in 
business  at  the  time  of  the  injury,  but  had  not  been  able  to 
attend  to  business  since.  It  was  uot  shown  what  his  business 
was,  or  the  value  of  his  time,  or  any  facts  as  to  his  occupa- 
tion from  which  that  value  could  be  estimated.  The  jury 
were  left  to  guess  or  speculate  upon  this  value  without  any 
basis  for  their  judgment,  so  far  as  loss  of  time  was  an  element 
of  the  damages  awarded.  The  court  charged  that  the  plaintiff, 
if  entitled  to  a  verdict,  was  "  entitled  to  recover  compensation 
for  the  time  lost  in  consequence  of  confinement  to  the  house, 
or  in  consequence  of  his  disability  to  labor  from  the  injury 
sustained."  The  defendant's  counsel  excepted  to  this  portion 
of  the  charge,  assigning  as  a  reason  or  ground  of  the  excep- 
tion, that  there  was  no  proof  in  the  case  of  the  value  of  such 
time.  The  answer  made  on  behalf  of  the  plaintiff  is  a  criti- 
cism on  the  form  of  the  exception.  It  is  said  that  "  as  the 
defendant's  counsel  did  not  ask  the  court  to  instruct  the  jury 
that  there  was  no  evidence  of  the  value  of  plaintiff's  time,  the 
only  question  here  raised  is  whether  the  proposition  charged 
is  law."     It  was  not  necessary  to  make  that  request.    The 


68  CASES  ON  DAMAGES. 

court  had  charged,  in  a  case  where  no  value  of  lost  time  had 
been  shown,  and  no  facts  on  which  an  estimate  of  such  value 
could  be  founded,  that  compensation  for  such  lost  time  could 
be  awarded  by  the  jury.     The  exception  was  aimed  at  that 
precise  proposition,  and  the  ground  upon  which  it  was  claimed 
to  be  erroneous  was   definitely  pointed   out.      The  charge, 
therefore,  can  only  be  defended  upon  two  grounds :   either, 
that  evidence  of  the  value  of  the  lost  time  was  given,  or,  if 
not,  that  the  jury  were  at  liberty  to  guess  at  and  speculate 
upon  that  value,  and  estimate  it  as  they  pleased.     The  first 
ground  we  have  shown  to  be  untenable,  and  the  exception 
consequently  requires  us  to  determine  the  second.     In  very 
numerous  actions  for  negligence,  both  those  where  death  had 
resulted  and  which  were  prosecuted  under  the  statute,  and 
those  for  injuries  not  resulting  in  death,  evidence  showing 
the  occupation  or  business  of  the  injured  party  and  tending 
to  establish  his  earning  power  has  been  held  competent  and 
material.     (Grant  v.  City  of  Brooklyn,  41   Barb.  384  ;  Mas- 
terton  v.  Village  of  Mount  Vernon,  58  N.  Y.  391 ;  Beisiegel 
v.  N.  Y.  Central  R.  R.   Co.,  40  Id.  10.)     And  that  is  so 
because  the  element  of  damages  which  consists  of  lost  time 
is  purely  a  pecuniar}'  loss  or  injury,  and  for  such  only  fait 
and  just  compensation  must  be  given,  and  the  jury  have  no 
arbitrary  discretion,  but  must  be  governed  by  the  weight  of 
evidence.     (Mclntyre  v.  N.  Y.  Central  R.  R.  Co.,  37  N.  Y. 
289.)     The  rule  of  recovery  is  compensation.      Where  the 
loss  is   pecuniary  and   is   present  and   actual   and   can  be 
measured,  but  no  evidence  is  given  showing  its  extent,  or 
from  which  it  can  be  inferred,  the  jur}r  can  allow  nominal 
damages   only.      (Sedgwick   on    Damages,   chap.  2,  p.  47 ; 
Brantingham  v.  Fay,  1  Johns.  Cas.   264 ;   N.  Y.  Dry  Dock 
Co.  v.  Mcintosh,  5  Hill,  290.)     In  the  present  case  the  jury 
knew  simply  that  time  was  lost  by  reason  of  incapacity  to 
labor.     They  were  bound  to  consider  it  of  some  value,  but 
could  not  go  beyond  nominal  damages,  and  give  compensa- 
tion for  it  upon  an  arbitrary  standard  of  their  own.     This 
they  were  permitted  to  do.     Without  proof  of  the  extent  or 


BRADFORD   v.   CUNARD   STEAMSHIP  COMPANY.        69 

character  of  the  plaintiff's  pecuniary  loss,  they  were  left  to 
fix  it  as  they  pleased.  Among  the  elements  of  damage  in 
cases  of  injury  for  negligence,  is  the  cost  of  the  cure,  the 
bills  and  expenses  of  medical  attendance.  Suppose  that 
the  bare  fact  was  shown  that  the  deceased  had  a  doctor, 
but  the  length  of  his  attendance  was  not  given,  the  amount 
of  his  charges  not  shown,  would  it  do  to  permit  the  jur}'  to 
give  compensation  for  the  cost  of  the  cure  upon  their  own 
guess  or  speculation  as  to  its  amount?  For  pain  and  suffer- 
ing, or  injuries  to  the  feelings,  there  can  be  no  measure  of 
compensation,  save  the  arbitrary  judgment  of  a  jury.  But 
that  is  a  rule  of  necessity.  Where  actual  pecuniaiy  damages 
are  sought,  some  evidence  must  be  given  showing  their 
existence  and  extent.  If  that  is  not  done,  the  jury  cannot 
indulge  in  an  arbitrary  estimate  of  their  own. 

The  judgment  should  be  reversed,  a  new  trial   granted, 
costs  to  abide  the  event. 

Judgment  reversed. 


BRADFORD  v.  CUNARD  STEAMSHIP  COMPANY. 

Massachusetts,  1888.     147  Mass.  55. 

Contract  to  recover  for  damage  to  six  cases  of  woolen 
dress  goods  while  being  carried  in  the  defendant's  steamship 
Samaria.1 

Holmes,  J.  The  goods  were  dress  goods.  It  appears 
that  all  the  contents  of  three  cases,  worth  not  less  than  six- 
teen hundred  dollars,  and  varying  proportions  of  them  in 
three  other  cases,  were  damaged  by  salt  water  and  soda  ash. 
We  cannot  say  that  a  jury  would  not  be  warranted  in  finding, 
as  a  matter  of  common  experience,  that  damage  of  such  a 
nature  to  such  goods  could  not  be  less  than  five  hundred  dol- 
lars, or  somewhat  under  a  third  of  the  value  of  those  goods 
which  were  all  soaked  with  the  alkali. 

Judgment  for  the  plaintiffs  for  Jive  hundred  dollars. 
1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


70  CASES   ON  DAMAGES. 

HOSSLER  v.  TEUMP. 
Ohio,  1900.     62  Ohio  St.  139. 

Action  to  recover  value  of  plaintiff's  services  as  nurse  and 
domestic  servant.1 

Shauck,  C.  J.  That  the  issues  joined  cast  upon  the  plain- 
tiff below  the  burden  of  proof  is  not  doubted  by  his  counsel. 
The  question  presented  and  discussed  is :  Should  the  jury 
have  been  permitted  to  estimate  the  value  of  the  services 
from  their  character  and  extent,  unaided  by  the  opinion  of  a 
witness  touching  such  value?  It  was  incumbent  upon  the 
plaintiff  to  present  evidence  tending  to  establish  the  facts 
from  which  the  promise  to  pay  for  the  services  would  prop- 
erly be  implied  as  well  as  those  which  would  show  the  char- 
acter and  extent  of  the  services  on  account  of  which  a 
recovery  was  sought.  With  respect  to  such  facts,  distin- 
guishing them  from  matters  of  opinion,  the  jury  cannot  be 
permitted  to  make  an}'  finding  favorable  to  the  plaintiff, 
unless  it  was  within  the  probative  effect  of  evidence  offered. 
So  far  at  least  we  have  departed  from  the  jury  of  the  vicin- 
age whose  personal  knowledge  of  the  facts  in  issue  was  a 
substitute  for  the  testimony  of  witnesses.  The  substance 
of  the  argument  in  support  of  the  instruction  given  is 
that  the  rule  recognized  as  applicable  to  facts  of  such 
character  should  extend  to  questions  of  value,  which  must 
remain  matters  of  mere  opinion,  however  numerous  may 
be  the  witnesses  who  testify  concerning  them.  The  sound- 
ness of  this  position  ma}'  be  tested  by  supposing  that  the 
plaintiff,  instead  of  alleging  that  these  services  were  worth 
three  dollars  per  day,  bad  alleged  that  they  were  worth  one 
hundred  dollars  a  day,  and  had  introduced  a  witness  who,  under 
oath,  expressed  the  opinion  that  they  were  of  that  value. 
Would  the  jury,  in  the  absence  of  other  opinions  from  wit- 
nesses, have  been  required  to  return  a  verdict  for  that 
1  The  statement  of  facts  is  omitted. 


HOSSLER  v.   TRUMP.  71 

amount?  No  one  would  suppose  that  the}7  should  adopt  an 
opinion  so  variant  from  common  knowledge.  By  what  proc- 
ess of  reasoning  could  we  be  conducted  to  the  conclusion 
that  that  is  indispensable  evidence  which  may  be  wholly  dis- 
regarded when  given?  It  cannot  be  supposed  that  a  jury  of 
twelve  men  would  be  required  to  perform  the  elementary 
operations  in  addition  and  division  by  which  the  average 
opinion  of  witnesses  would  be  ascertained.  The  jury  in  such 
a  case  may  reject  the  opinions  of  witnesses,  if  the}*  deem 
them  unreasonable,  because  the  facts  touching  the  character 
and  extent  of  the  services  which  the  plaintiff  is  required  to 
prove,  and  which  in  the  case  before  us  were  proved,  are 
themselves  the  subject  of  consideration  by  the  jurors  with  a 
view  to  the  exercise  of  their  own  knowledge  and  the  forma- 
tion of  their  own  opinions  as  to  their  value.  The}-  may  be 
used  to  correct  the  opinions  of  witnesses  as  to  value,  because 
they  are  themselves  evidence  of  value.  In  a  case  of  this 
character  the  witness,  if  placed  in  possession  of  the  facts 
correctly  assumed  in  a  question,  is  in  no  better  position  for 
forming  an  opinion  than  that  occupied  by  the  jurors.  We  are 
not  without  the  aid  of  adjudications  upon  the  question  pre- 
sented. The  case  of  Head  v.  Hargrave,  105  U.  S.  45,  was 
an  action  for  the  value  of  professional  services  rendered  by 
an  attorney-at-law,  and  upon  this  question  Justice  Field  said : 
"  It  was  the  province  of  the  jury  to  weigh  the  testimony  of 
the  attorneys  as  to  the  value  of  the  services,  by  reference  to 
their  nature,  the  time  occupied  in  their  performance,  and 
other  attending  circumstances,  and  by  applying  to  it  their 
own  experience  and  knowledge  of  the  character  of  such 
services.  To  direct  them  to  find  the  value  of  the  services 
from  the  testimony  of  the  experts  alone  was  to  say  to  them 
that  the  issue  should  be  determined  by  the  opinions  of  the 
attorneys  and  not  by  the  exercise  of  their  own  judgment  of 
the  facts  on  which  those  opinions  were  given.  ...  So  far 
from  laying  aside  their  own  general  knowledge  and  ideas,  the 
jury  should  have  applied  that  knowledge  and  those  ideas  to 
the  matters  of  fact  in  evidence  in  determining  the  weight  to  be 


72  CASES  ON  DAMAGES. 

given  to  the  opinions  expressed  and  from  which  only  in  that 
way  the}'  could  arrive  at  a  just  conclusion.  While  they  can- 
not act  in  any  case  upon  particular  facts  material  to  its  dis- 
position resting  in  their  private  knowledge,  but  should  be 
governed  by  the  evidence  adduced,  they  may,  and  to  act 
intelligently  they  must,  judge  of  the  weight  and  force  of  that 
evidence  by  their  own  general  knowledge  of  the  subject  of 
the  inquiry.  .  .  .  Other  persons  besides  professional  men 
have  knowledge  of  the  value  of  professional  services ;  and, 
while  great  weight  should  always  be  given  to  the  opinions  of 
those  familiar  with  the  subject,  they  are  not  to  be  blindly 
received,  but  are  to  be  intelligently  examined  by  the  jury  in 
the  light  of  their  own  general  knowledge ;  they  should  control 
only  as  they  are  found  to  be  reasonable.  The  judgment  of 
witnesses  as  matter  of  law  is  in  no  case  to  be  substituted  for 
that  of  the  jurors." 

Since  this  view  of  the  subject  has  been  considerately  taken 
where  the  services  were  of  a  professional  character,  it  should 
of  course  prevail  in  a  case  where,  as  here,  the  services  are 
of  such  a  nature  that  an  intelligent  opinion  touching  their 
value  may  be  formed  from  common  knowledge.  The  same 
view  has  been  applied  in  cases  of  the  precise  nature  of  this. 
Craig  v.  Durrett,  1  J.  J.  Marsh,  336  ;  Baum  v.  Winston,  3 
Met.  Ky.  127.  It  derives  support  from  other  cases  cited  in 
the  briefs  of  counsel  for  the  defendant  in  error. 

The  argument  and  citations  in  support  of  the  instruction 
given  fail  to  distinguish  between  facts  in  issue  and  opinions 
founded  upon  facts  proved.  The  conclusion  intimated  will 
not  make  the  verdict  final,  for  the  evidence  as  to  the 
extent  and  character  of  the  services  rendered  would  come 
within  the  consideration  of  the  trial  judge  on  a  motion  for  a 
new  trial,  and  be  presented  to  reviewing  courts  by  a  bill  of 
exceptions.  If  the  excellent  opinion  by  Judge  Laubie  in 
Mclntyre's  Executor  v.  Garlick,  4  Circ.  Dec.  429,  8  C.  C. 
416,  had  appeared  in  these  volumes  there  would  have  been  no 
occasion  for  this  report. 

Judgment  affirmed. 


CHAPTER  V. 

DIRECT   AND   CONSEQUENTIAL   DAMAGES. 


KENRIG  v.  EGGLESTON. 
King's  Bench,  1648.     Aleyn,  93. 

In  an  action  upon  the  case  against  a  country  carrier  for  not 
delivering  a  box  with  goods  and  money  in  it,  the  evidence 
was,  that  the  plaintiff  delivered  the  box  to  the  carrier's  porter, 
whom  he  appointed  to  receive  goods  for  him,  and  told  the 
porter  that  there  was  a  book  and  tobacco  in  the  box  ;  aud  in 
truth  there  was  a  hundred  pounds  in  it  besides.  And  it  was 
agreed  by  the  counsel,  and  given  in  charge  to  the  jury,  that  if 
a  box  with  money  in  it  be  delivered  to  a  carrier,  he  is  bound 
to  answer  for  it  if  he  be  robbed,  although  it  was  not  told  him 
what  was  in  it.  And  so  it  was  ruled  in  one  Barcroft's  Case, 
as  Rolle  [C.J.]  said,  where  a  box  of  jewels  was  delivered  to 
a  ferryman,  who  knowing  not  what  was  in  it,  and  being  in  a 
tempest,  threw  it  overboard  into  the  sea ;  and  resolved  that 
he  should  answer  for  it. 

Rolle  directed,  that  although  the  plaintiff  did  tell  him 
of  some  things  in  the  box  only,  and  not  of  the  money,  yet  he 
must  answer  for  it ;  for  he  need  not  tell  the  carrier  all  the 
particulars  in  the  box ;  but  it  must  come  on  the  carrier's  part 
to  make  a  special  acceptance.  But  in  respect  of  the  intended 
cheat  to  the  carrier  he  told  the  jury  they  might  consider  him 
in  damages ;  notwithstanding,  the  jury  gave  £97  against  the 
carrier  for  the  money  only  (the  other  things  being  of  no  con- 
siderable value),  abating  £3  only  for  carriage.  Quod  durum 
videbatur  circumstantibus. 


74  CASES  ON  DAMAGES. 

TICE  v.  MUNN. 

New  York,  1883.     94  N.  Y.  621. 

Finch,  J.  The  defendant  asked  the  court  to  charge  in 
substance,  that  if  the  plaintiff  was  in  an  unhealthy  and  debili- 
tated condition,  and  the  injuries  were  more  serious  and  last- 
ing by  reason  of  her  bodily  condition,  then  the  defendant  is 
only  liable  for  such  consequences  of  the  injury  as  would  have 
resulted  if  she  had  been  in  good  bodily  health.  The  court 
refused  to  charge  as  requested,  but  stated  the  rule  to  be,  that 
if  by  reason  of  a  delicate  condition  of  health,  the  consequences 
of  a  negligent  injury  are  more  serious  still,  for  those  conse- 
quences the  defendant  is  liable,  although  they  are  aggravated 
by  the  imperfect  bodily  condition.  To  the  refusal  and  the 
charge  the  defendant  excepted.  There  was  nothing  in  the 
case  to  call  for  the  instruction  sought.  The  proof  utterly 
failed  to  show  any  weakened  or  imperfect  bodily  coudition 
which  aggravated  the  injury.  What  was  suggested  as  a  rheu- 
matic attack  two  years  before,  proved  to  have  been  not  such, 
and  of  no  practical  importance,  and  the  court  was  asked  to 
charge  upon  an  abstract  proposition  having  no  just  bearing 
on  the  case.  But  the  charge  waa  right  Taken  in  connection 
with  the  rule  of  damages  several  times  repeated,  it  amounted 
to  saying  that  the  negligent  part}'  is  responsible  for  the  proxi- 
mate consequences  of  his  act,  even  though  those  consequences 
are  more  severe  and  aggravated  by  reason  of  delicate  health 
than  the}"  would  have  been  if  the  sufferer  had  been  sound  and 
well.  This  does  not  allow  damages  for  what  the  defendant 
did  not  proximately  cause,  but  holds  him  responsible  for  such 
consequences  in  the  particular  case. 


MANN  BOUDOIR  CAR  CO.  v.  DUPRE.  75 


MANN  BOUDOIR  CAR  CO.  v.  DUPRE. 

U.  S.  Circuit  Court  of  Appeals,  Fifth  Circuit,  1893.     51  Fed.  646. 

Action  by  Florence  C.  Dupre  against  the  Mann  Boudoir 
Car  Company  to  recover  damages  for  illegal  expulsion  from 
the  berth  of  a  sleeping-car.  The  Circuit  Court  gave  judg- 
ment for  plaintiff.     Defendant  brings  error. 

McCormick,  Circ.  J.1  The  plaintiff  in  error's  second  prop- 
osition rests  on  the  theory  that,  unless  it  was  apparent  to  a 
casual  observer  that  Mrs.  Dupre  was  enceinte,  or  that  fact 
•was  made  known  to  the  servants  of  the  company,  she  could 
not  recover  damages  for  her  subsequent  miscarriage,  though 
the  jury  might  believe  from  the  evidence  the  miscarriage  was 
proximately  caused  by  the  unlawful  conduct  of  the  company's 
servants  in  expelling  her  from  the  train.  This  theory,  and 
the  requested  charge  embodying  it,  would  require  every  preg- 
nant woman  to  refrain  from  travel ;  to  take  all  the  risks  of 
the  negligence  of  public  carriers  ;  or  to  proclaim  her  condition 
to  the  servants  of  the  carriers.  We  are  not  willing  to  sanc- 
tion by  our  authority  a  rule  that  would  so  shock  the  delicacy, 
dignity,  and  sense  of  justice  of  our  "  honorable  women  not  a 
few."  The  subject  called  for  careful  direction  of  the  jury  in 
order  to  exclude  damages  too  remote  ;  that  is,  such  as  were 
suffered  from  the  action  of  some  intervening  cause,  or  con- 
tributed to  by  the  negligence  of  the  plaintiff  below.  Where, 
however,  the  proof  satisfactorily  shows  that  the  misconduct  of 
the  carrier's  servant  to  her  while  she  was  a  passenger  in  the 
carrier's  car  was  the  proximate  cause  of  such  an  injury  to  a 
married  woman,  the  carrier  should  not  be  held  exempt  from 
liability  on  account  of  the  fact  that  her  condition  was  unknown 
to  the  servants  of  the  company.  We  therefore  do  not  sus- 
tain the  second  proposition  of  the  plaintiff  in  error. 

1  Part  of  the  opinion  is  omitted. 


76  CASES  ON  DAMAGES. 

VOSBURG  v.  PUTNEY. 

Wisconsin,  1891.    80  Wis.  523. 

The  plaintiff  was  about  fourteen  years  of  age,  and  the 
defendant  about  eleven  years  of  age.  On  the  20th  day  of 
February,  1889,  they  were  sitting  opposite  to  each  other 
across  an  aisle  in  the  high  school  of  the  village  of  Wau- 
kesha. The  defendant  reached  across  the  aisle  with  his 
foot,  and  hit  with  his  toe  the  shin  of  the  right  leg  of  the 
plaintiff.  The  touch  was  slight.  The  plaintiff  did  not  feel  it, 
either  on  account  of  its  being  so  slight  or  of  loss  of  sensation 
produced  by  the  shock.  In  a  few  moments  he  felt  a  violent 
pain  in  that  place,  which  caused  him  to  cry  out  loudly.  The 
next  day  he  was  sick,  and  had  to  be  helped  to  school.  On  the 
fourth  day  he  was  vomiting,  and  Dr.  Bacon  was  sent  for,  but 
could  not  come,  and  he  sent  medicine,  to  stop  the  vomiting, 
and  came  to  see  him  the  next  da}',  on  the  25th.  There  was  a 
slight  discoloration  of  the  skin  entirely  over  the  inner  surface 
of  the  tibia  an  inch  below  the  bend  of  the  knee.  The  doctor 
applied  fomentations,  and  gave  him  anod}-nes  to  quiet  the 
pain.  This  treatment  was  continued,  and  the  swelling  so  in- 
creased by  the  5th  day  of  March  that  counsel  was  called,  and 
on  the  8th  of  March  an  operation  was  performed  on  the  limb 
by  making  an  incision,  and  a  moderate  amount  of  pus  escaped. 
A  drainage  tube  was  inserted,  and  an  iodoform  dressing  put 
on.  On  the  sixth  day  after  this,  another  incision  was  made 
to  the  bone,  and  it  was  found  that  destruction  was  going  on 
in  the  bone,  and  so  it  has  continued  exfoliating  pieces  of 
bone.  He  will  never  recover  the  use  of  his  limb.  There 
were  black  and  blue  spots  on  the  shin  bone,  indicating  that 
there  had  been  a  blow.  On  the  first  da}r  of  January  before, 
the  plaintiff  received  an  injury  just  above  the  knee  of  the 
same  leg  b}'  coasting,  which  appeared  to  be  healing  up  and 
drying  down  at  the  time  of  the  last  injury.     The  theory  of  at 


VOSBURG  v.   PUTNEY.  77 

least  one  of  the  medical  witnesses  was  that  the  limb  was  in  a 
diseased  condition  when  this  touch  or  kick  was  given,  caused 
by  microbes  entering  in  through  the  wound  above  the  knee, 
and  which  were  revivified  by  the  touch,  and  that  the  touch 
was  the  exciting  or  remote  cause  of  the  destruction  of  the 
bone,  or  of  the  plaintiffs  injury.  It  does  not  appear  that 
there  was  any  visible  mark  made  or  left  by  this  touch  or  kick 
of  the  defendant's  foot,  or  an}T  appearance  of  injury  until  the 
black  and  blue  spots  were  discovered  by  the  physician  several 
days  afterwards,  and  then  there  were  more  spots  than  one. 
There  was  no  proof  of  any  other  hurt,  and  the  medical  testi- 
mony seems  to  have  been  agreed  that  this  touch  or  kick  was 
the  exciting  cause  of  the  injury  to  the  plaintiff.1 

Lyon,  J.  Certain  questions  were  proposed  on  behalf  of 
defendant  to  be  submitted  to  the  jury,  founded  upon  the  theory 
that  only  such  damages  could  be  recovered  as  the  defendant 
might  reasonably  be  supposed  to  have  contemplated  as  likely 
to  result  from  his  kicking  the  plaintiff.  The  court  refused  to 
submit  such  questions  to  the  jury.  The  ruling  was  correct. 
The  rule  of  damages  in  actions  for  torts  was  held  in  Brown  v. 
Railway  Co.,  54  Wis.  342,  to  be  that  the  wrongdoer  is  liable 
for  all  injuries  resulting  directly  from  the  wrongful  act, 
whether  they  could  or  could  not  have  been  foreseen  by  him. 
The  Chief  Justice  and  the  writer  of  this  opinion  dissented 
from  the  judgment  in  that  case,  chiefly  because  we  were  of 
the  opinion  that  the  complaint  stated  a  cause  of  action  ex 
contractu,  and  not  ex  delicto,  and  hence  that  a  different  rule 
of  damages  —  the  rule  here  contended  for  —  was  applicable. 
We  did  not  question  that  the  rule  in  actions  for  tort  was 
correctly  stated.  That  case  rules  this  on  the  question  of 
damages. 

1  This  statement  of  the  case  is  taken  from  the  opinion  of  Ortox,  J., 
on  a  former  appeal  in  the  same  case,  78  Wis.  84.  Part  of  the  opinion  of 
Lyon,  J.,  is  omitted. 


78  CASES  ON  DAMAGES. 

ANONYMOUS. 

Huntingdon  Assizes,  1367.     42  Lib.  Assis.  pi.  19. 

Before  Kirketon,  Serg.,  and  Fincheden,  J.,  an  appeal  of 
robbery  was  sued  in  Huntingdon  against  one  who  came  and 
was  acquitted  ;  and  he  prayed  that  they  should  be  asked  as  to 
his  damages,  and  as  to  abettors.  And  inquisition  was  made, 
and  twenty  shillings  damages  were  found  for  the  defendant. 
And  because  it  was  known  to  the  court  that  the  appellee  was 
for  a  long  time  in  prison  he  moved  that  the  damages  be  in- 
creased by  the  court.  And  this  matter  was  sent  to  Knivet, 
C.  J.,  to  get  his  opinion.  He  said  that  in  such  a  case  when 
the  inquest  had  taxed  the  damages,  the  court  could  not  alter 
it ;  for  it  was  the  fault  of  the  justices  that  they  would  not 
take  inquest  at  the  first  day  for  such  general  deliveries, 
even  though  no  panel  was  returned  ;  for  they  should  compel 
the  sheriff  to  make  a  panel  on  the  spot,  from  the  people,  both 
strangers  and  inhabitants,  there  present,  &c. 

KENT  v.  KELWAY. 

Exchequer  Chamber,  1610.     Lane,  70. 

In  the  case  between  Kent  and  Kelwa}',  which  was  debated 
Pasch.  8  Jac,  the  judges  pronounced  in  the  Exchequer 
Chamber,  that  judgment  ought  to  be  affirmed,  notwithstand- 
ing their  opinion  before  to  the  contrary  as  it  appeareth,  and 
therefore  I  demanded  of  Mr.  Hoopwel,  Clerk  of  the  Errors, 
what  was  the  reason  of  their  opinions  ;  and  he  told  me  that 
the  case  was  debated  by  them  this  term  at  Sergeants'  Inn, 
and  then  they  resolved  to  affirm  the  judgment ;  and  the 
reasons  as  he  remembered  were  as  followeth,  and  he  also 
delivered  unto  me  the  case,  as  he  had  collected  it  out  of  the 
records,  and  delivered  it  to  the  judges,  which  was,  that  the 


GUILLE  v.   SWAN.  79 

plaintiff  in  the  King's  Bench  declared  that  one  Benjamin 
Shephard  was  indebted  to  him  in  £300,  and  that  he  sued  out 
of  the  King's  Bench  an  alias  capias  directed  to  the  sheriff  of 
N.  to  the  intent  to  compel  the  said  Benjamin  Shephard  upon 
his  appearance  to  put  in  bail,  according  to  the  custom  of 
that  court,  for  the  recovery  of  his  debt,  which  writ  was  de- 
livered to  John  Shaw,  sheriff  of  the  said  county,  to  be  exe- 
cuted. The  sheriff  made  his  warrant  to  the  bailiff  of  the 
liberty  of  the  Wapentake  of  Newark,  and  the  plaintiff  him- 
self delivered  it  to  James  Lawton,  deputy  of  the  Lord 
Burleigh,  the  King's  chief  bailiff  of  that  liberty,  to  be  exe- 
cuted, and  the  deputy  bailiff  by  virtue  of  the  said  warrant 
arrested  the  said  Benjamin  Shephard,  whereupon  the  defend- 
ant with  others  made  an  assault  and  rescued  the  said  Benja- 
min Shephard  out  of  the  custody  of  the  said  deputy  bailiff, 
whereby  he  lost  all  his  debt,  and  damages  were  assessed  at 
£172,  and  costs  £10. 

And  in  this  case  the  judges  agreed,  that  notwithstanding 
the  defendant  had  rescued  the  said  Benjamin  Shephard  out 
of  the  hands  of,  &c,  when  the  said  Benjamin  Shephard 
was  arrested  upon  an  alias  capias  out  of  the  King's  Bench, 
which  writ  is  only  in  nature  of  a  plea  of  trespass,  yet  the 
party  who  rescued  him  shall  answer  in  this  action,  damages 
for  the  debt,  because  the  plaintiff  by  this  means  had  lost  his 
debt.  And  yet  it  is  not  showed  that  the  rescuer  knew  that 
the  plaintiff  would  declare  for  his  debt,  but  if  in  this  case 
the  sheriff  or  bailiff  had  suffered  a  negligent  escape,  they 
should  be  charged  only  with  the  damages  in  the  same  plea  as 
the  writ  supposeth,  and  not  for  the  debt ;  and  so  a  diversity.1 

GUILLE  v.   SWAN. 

New  York,  1822.     19  Johns.  381. 

In  error,  on  certiorari,  to  the  Justices'  Court  in  the  city 
of  New  York.  Swan  sued  Guille  in  the  Justices'  Court,  in 
an  action  of  trespass,  for  entering  his  close,  and  treading 

1  The  remainder  of  the  case  is  omitted. 


80  CASES  ON  DAMAGES. 

down  his  roots  and  vegetables,  &c,  in  a  garden  in  the  city  of 
New  York.  The  facts  were,  that  Guille  ascended  in  a  balloon 
in  the  vicinity  of  Swan's  garden,  and  descended  into  his 
garden.  When  he  descended,  his  body  was  hanging  out  of 
the  car  of  the  balloon  in  a  very  perilous  situation,  and  he 
called  to  a  person  at  work  in  Swan's  field,  to  help  him,  in  a 
voice  audible  to  the  pursuing  crowd.  After  the  balloon 
descended,  it  dragged  along  over  potatoes  and  radishes, 
about  thirt}'  feet,  when  Guille  was  taken  out.  The  balloon 
was  carried  to  a  barn  at  the  farther  end  of  the  premises. 
When  the  balloon  descended,  more  than  two  hundred 
persons  broke  into  Swan's  garden  through  the  fences,  and 
came  on  his  premises,  beating  down  his  vegetables  and 
flowers.  The  damage  done  by  Guille,  with  his  balloon,  was 
about  fifteen  dollars,  but  the  crowd  did  much  more.  The 
plaintiffs  damages,  in  all,  amounted  to  ninety  dollars.  It 
was  contended  before  the  Justice,  that  Guille  was  answerable 
only  for  the  damage  done  by  himself,  and  not  for  the  damage 
done  by  the  crowd.  The  Justice  was  of  the  opinion,  and  so 
instructed  the  jury,  that  the  defendant  was  answerable  for  all 
the  damages  done  to  the  plaintiff.  The  jury,  accordingly, 
found  a  verdict  for  him,  for  90  dollars,  on  which  the  judgment 
was  given,  and  for  costs. 

The  cause  was  submitted  to  the  court  on  the  return,  with 
the  briefs  of  the  counsel,  stating  the  points  and  authorities. 

Spencer,  C.J.,  delivered  the  opinion  of  the  court.  The 
counsel  for  the  plaintiff  in  error  supposes,  that  the  injury 
committed  by  his  client  was  involuntary,  and  that  done  by 
the  crowd  was  voluntary,  and  that,  therefore,  there  was  no 
union  of  intent ;  and  that,  upon  the  same  principle  which 
would  render  Guille  answerable  for  the  acts  of  the  crowd,  in 
treading  down  and  destroying  the  vegetables  and  flowers  of 
S.,  he  would  be  responsible  for  a  battery,  or  a  murder 
committed  on  the  owner  of  the  premises. 

The  intent  with  which  an  act  is  done,  is  by  no  means  the 
test  of  the  liability  of  a  party  to  an  action  of  trespass.  If 
the  act  cause  the  immediate  injury,  whether  it  was  intentional 


GUILLE  v.    SWAN.  81 

or  unintentional,  trespass  is  the  proper  action  to  redress  the 
wrong.  It  was  so  decided,  upon  a  review  of  ail  the  cases, 
in  Percival  v.  Hickey,  18  Johns.  Rep.  257.  Where  an 
immediate  act  is  done  by  the  co-operation  or  the  joint  act 
of  several  persons,  they  are  all  trespassers,  and  may  be  sued 
jointly  or  severally  ;  and  any  one  of  them  is  liable  for  the 
injury  done  by  all.  To  render  one  man  liable  in  trespass  for 
the  acts  of  others,  it  must  appear,  either  that  they  acted  in 
concert,  or  that  the  act  of  the  individual  sought  to  be  charged, 
ordinarily  and  naturally,  produced  the  acts  of  the  others. 
The  case  of  Scott  v.  Shepherd,  2  Black.  Rep.  892,  is  a 
strong  instance  of  the  responsibility  of  an  individual  who 
was  the  first,  though  not  the  immediate,  agent  in  producing 
an  injury.  Shepherd  threw  a  lighted  squib,  composed  of 
gunpowder,  into  a  market  house,  where  a  large  concourse 
of  people  were  assembled  ;  it  fell  on  the  standing  of  Y.,  and 
to  prevent  injury,  it  was  thrown  off  his  standing,  across  the 
market,  when  it  fell  on  another  standing ;  from  thence,  to 
save  the  goods  of  the  owner,  it  was  thrown  to  another  part 
of  the  market  house,  and  in  so  throwing  it,  it  struck  the 
plaintiff  in  the  face,  and,  bursting,  put  out  one  of  his  eyes. 
It  was  decided,  by  the  opinions  of  three  judges  against  one, 
that  Shepherd  was  answerable  in  an  action  of  trespass,  and 
assault  and  battery.  De  Grey,  C.J  ,  held,  that  throwing 
the  squib  was  an  unlawful  act,  and  that  whatever  mischief 
followed,  the  person  throwing  it  was  the  author  of  the 
mischief.  All  that  was  done  subsequent  to  the  original 
throwing,  was  a  continuation  of  the  first  force  and  first  act. 
Any  innocent  person  removing  the  danger  from  himself  was 
justifiable ;  the  blame  lights  upon  the  first  thrower ;  the  new 
direction  and  new  force  flow  out  of  the  first  force.  He  laid 
it  down  as  a  principle,  that  ever)-  one  who  does  an  unlawful 
act,  is  considered  as  the  doer  of  all  that  follows.  A  person 
breaking  a  horse  in  Lincolns-Tnn-Fields,  hurt  a  man,  and  it 
was  held  that  trespass  would  lie.  In  Leame  v.  Bray,  3  East 
Rep.  595,  Lord  Ellenborough  said,  If  I  put  in  motion  a  dan- 
gerous thing,  as  if  I  let  loose  a  dangerous  animal,  and  leave 


82  CASES   ON  DAMAGES. 

to  hazard  what  may  happen,  and  mischief  ensue,  I  am 
answerable  in  trespass ;  and  if  one  (he  says)  put  an  animal 
or  carriage  in  motion,  which  causes  an  immediate  injury  to 
another,  he  is  the  actor,  the  causa  causans. 

I  will  not  say  that  ascending  in  a  balloon  is  an  unlawful 
act,  for  it  is  not  so ;  but  it  is  certain  that  the  aeronaut  has 
no  control  over  its  motion  horizontally  ;  he  is  at  the  sport  of 
the  winds,  and  is  to  descend  when  and  how  he  can ;  his 
reaching  the  earth  is  a  matter  of  hazard.  He  did  descend 
on  the  premises  of  the  plaintiff  below  at  a  short  distance 
from  the  place  where  he  ascended.  Now,  if  his  descent, 
under  such  circumstances,  would,  ordinarily  and  naturally, 
draw  a  crowd  of  people  about  him,  either  from  curiositj-,  or 
for  the  purpose  of  rescuing  him  from  a  perilous  situation,  —  all 
this  he  ought  to  have  foreseen,  and  must  be  responsible  for. 
Whether  the  crowd  heard  him  call  for  help,  or  not,  is  imma- 
terial ;  he  had  put  himself  in  a  situation  to  invite  help,  and 
they  rushed  forward,  impelled,  perhaps,  by  the  double  motive 
of  rendering  aid,  and  gratifying  a  curiosity  which  he  had  ex- 
cited. Can  it  be  doubted,  that  if  the  plaintiff  in  error  had 
beckoned  to  the  crowd  to  come  to  his  assistance,  that  he 
would  be  liable  for  their  trespass  in  entering  the  enclosure? 
I  think  not.  In  that  case,  they  would  have  been  co-tres- 
passers, and  we  must  consider  the  situation  in  which  he 
placed  himself,  voluntarily  and  designedly,  as  equivalent 
to  a  direct  request  to  the  crowd  to  follow  him.  In  the 
present  case,  he  did  call  for  help,  and  may  have  been  heard 
by  the  crowd ;  he  is,  therefore,  undoubtedly,  liable  for  all 
the  injury  sustained.  Judgment  affirmed. 


BROWN  v.   CUMMINGS. 

Massachusetts,  1863.     7  All.  507. 

Tort  for  an  assault  and  batten-,  with  an  allegation  that  by 
reason  thereof  the  plaintiff  lost  a  position  as  surgeon's  mate 
in  the  navy,  to  which  he  was  about  to  be  appointed. 


BROWN  v.   CUMMINGS.  83 

At  the  trial  in  the  Superior  Court,  before  Ames,  J.,  the 
plaintiff  was  permitted,  against  the  defendant's  objection,  to 
testify  that  before  the  assault  and  batteiy  complained  of  he 
had  made  an  application  for  the  position  of  surgeon's  mate ; 
but  that,  being  disabled  by  the  assault  and  battery,  for  that 
reason  he  had  soon  afterwards  withdrawn  his  application. 
He  made  no  further  attempt  to  show  that  he  had  lost  the 
situation,  and  this  evidence  was  not  afterwards  referred  to 
by  the  counsel  of  either  party,  or  by  the  court.  The  evidence 
of  the  plaintiff  tended  to  show  that  the  assault  was  of  an  un- 
provoked and  aggravated  character ;  and  the  defence  pro- 
ceeded wholly  on  the  ground  that  the  evidence  on  which  the 
plaintiff  relied  was  untrue,  and  that  the  defendant  had 
committed  no  assault  and  battery  whatever. 

The  jury  returned  a  verdict  for  the  plaintiff,  with  damages 
in  the  sum  of  $100  ;  and  the  defendant  alleged  exceptions. 

JV.  Morse,  for  the  defendant. 

P.  P.  Todd,  for  the  plaintiff. 

Chapman,  J.  The  question  presented  by  the  bill  of  excep- 
tions is,  whether  the  evidence  objected  to  ought  to  have  been 
rejected.  If  the  plaintiff  had  a  right,  under  his  declaration, 
to  prove  the  loss  of  the  office  of  surgeon's  mate  as  conse- 
quential damages,  then  the  evidence  was  properly  admitted ; 
because  it  was  pertinent  evidence  on  that  point,  though  it 
was  obviously  insufficient  without  proof  of  additional  facts. 

The  rule  of  law  is,  that  where  special  damages  are  not 
alleged  in  the  declaration,  the  plaintiff  can  prove  only  such 
damages  as  are  the  necessaiy  as  well  as  proximate  result  of 
the  act  complained  of;  but  where  they  are  alleged,  they  ma\T 
be  proved  so  far  as  the}'  are  the  proximate,  though  not  the 
necessary  result.  1  Chit.  PI.  (6th  ed.)  441.  2  Greenl.  Ev. 
§  256.  Dickinson  v.  Boyle,  17  Pick.  78.  As  the  declaration 
in  this  case  alleges  the  loss  of  the  office  as  special  damage, 
the  evidence  was  admissible,  if  the  loss  can  be  regarded  as  a 
proximate  result  of  the  assault  and  batteiy.  So  far  as  we 
have  been  able  to  find  authorities  on  the  point  (for  none 
were  cited  on  behalf  of  the  plaintiff),  they  tend  to  show  that 


84  CASES   ON   DAMAGES. 

It  was  not  proximate,  but  remote.  In  Boyce  v.  Bayliffe,  1 
Camp.  58,  it  is  said  to  have  been  held  that,  in  an  action  for 
false  imprisonment,  with  an  allegation  that  the  plaintiff  there- 
by lost  a  lieutenancy,  he  could  not  recover  for  the  loss  because 
it  was  remote.  In  1  Chit.  PI.  440,  the  same  rule  of  law  is 
stated.  In  Moore  v.  Adam,  2  Chit.  R.  198,  which  was  an 
action  for  assault  and  battery,  with  an  allegation  of  special 
damage,  the  plaintiff  offered  to  prove  that,  in  consequence  of 
the  blows  given  to  him  b}-  the  defendant,  he  had  been  driven 
from  Alicant,  where  he  had  before  carried  on  trade  as  a 
merchant.     This  was  held  to  be  too  remote. 

These  authorities  seem  to  us  to  be  in  conformity  with  the 
principle  stated  above.  We  do  not  see  how  the  loss  of  an 
office  can  be  proximately  connected  with  an  assault  and 
battery  as  its  cause.  There  must  be  intervening  events 
which  make  the  connection  more  or  less  remote ;  and  it  is 
difficult  to  see  how  the  result  can  happen  without  the  addi- 
tion of  independent  causes  also.  It  is  somewhat  like  the 
case  of  a  merchant  who  should  offer  to  prove  that,  in  con- 
sequence of  an  assault  and  batter}',  he  was  unable  to  go  to 
his  store,  and  thereby  lost  the  opportunity  to  close  a  par- 
ticular bargain  which  would  have  been  profitable ;  or  of  a 
farmer  who  should  offer  to  prove  that  in  consequence  of  such 
an  act  he  was  unable  to  gather  in  his  crop  of  grain,  and 
thereby  lost  it.  In  the  present  case,  one  of  the  intervening 
causes  of  the  loss  of  the  office  appears  to  have  been  a  volun- 
tary act  of  the  plaintiff's  own  will,  and  there  must  also  have 
been  the  concurrent  voluntary  acts  of  other  men.  The 
evidence  ought  therefore  to  have  been  excluded. 

Although  this  evidence  was  not  noticed  by  counsel  on 
either  side  in  addressing  the  jury,  or  by  the  court  in  in- 
structing them,  yet  it  is  impossible  to  know  that  it  had  no 
effect  upon  their  verdict.  After  it  had  been  admitted, 
against  the  objection  of  the  defendant's  counsel,  the  jury 
had  a  right  to  regard  it  as  legal  and  material,  unless  they 
were  afterwards  instructed  to  disregard  it. 

Exceptions  sustained. 


DUBUQUE  WOOD  AND  COAL  ASSOC,  v.   DUBUQUE.   85 


DUBUQUE  WOOD  AND  COAL  ASSOC,  v.  DUBUQUE. 

Iowa,  1870.     30  la.  176. 

Action  at  law.  The  petition  avers,  that,  prior  to  the  date 
when  plaintiff's  cause  of  action  accrued,  there  had  heen 
erected  and  maintained  a  bridge  on  Seventh  Street  in  the  city 
of  Dubuque  over  a  slough  of  the  Mississippi  River ;  that 
Seventh  Street  was  a  highway  leading  from  the  business 
portion  of  the  city  to  the  levee  upon  the  river,  and,  as  such, 
was  used  by  the  public  ;  that  said  bridge  was  a  county  bridge, 
and  it  was  the  duty  of  the  city  as  well  as  the  county  to 
rebuild  it  after  it  became  impassable ;  that  before  the 
bridge  became  impassable,  a  large  quantity  of  wood  being 
deposited  upon  tbe  levee,  as  was  customary,  was  purchased 
by  plaintiff  for  the  purpose  of  reselling  to  its  customers 
in  the  citj'  of  Dubuque  ;  that  the  levee  was  liable  to  be  over- 
flowed by  the  river,  and  the  street  upon  which  the  bridge  in 
question  was  erected  was  the  onty  wa}'  over  which  the  wood 
could  have  been  transported  to  plaintiff's  customers.  On 
account  of  the  bridge  becoming  impassable,  and  of  the  negli- 
gence of  defendants,  in  failing  to  rebuild  it,  plaintiff  was 
unable  to  remove  his  wood.  Subsequentlv,  but  prior  to  any 
repairs  made  upon  the  bridge,  the  wood  was  lost  by  a  flood 
in  the  river.  The  defendants  provided  no  other  bridge  or 
way,  while  the  bridge  in  question  was  unfit  for  use,  by  which 
plaintiff  could  have  removed  the  wood. 

The  defendants  separately  demurred  to  the  petition,  alleging 
that  it  exhibited  no  cause  of  action,  and  each  claiming  not  to 
be  liable  upon  the  state  of  facts  set  out  in  the  petition.  The 
demurrers  were  sustained  and  plaintiff  appeals. 

Beck,  J.  It  is  not  denied,  by  the  appellees,  that  the  injury 
complained  of  will  support  an  action,  unless  the  injury  ap- 
pears to  be  public  in  its  nature,  and  the  damage  claimed  too 
remote,  under  the  rules  of  the  law,  to  become  the  basis  of  a 


86  CASES   ON   DAMAGES. 

compensator}*  judgment.  The  liability  of  the  county  and  city 
for  damage,  the  direct  and  certain  result  of  negligence  in 
failing  to  repair  a  highway,  when  that  duty  is  imposed  upon 
them,  is  not  questioned  by  the  counsel  of  appellees. 

The  questions  presented  for  our  determination,  in  this 
case,  are  these :  1.  Are  the  injuries  set  out  in  the  petition, 
as  the  foundation  of  the  action,  of  such  a  public  nature,  being 
shared  by  plaintiff  with  the  public  generally,  that  recov- 
ery therefor  is  precluded?  2.  Is  the  damage  claimed  so 
remote  that  compensation,  under  the  rules  of  the  law,  will  not 
be  given?  3.  If  the  action  can  be  maintained,  majT  recovery 
be  had  against  both  of  the  defendants  ?  If  not  against  both, 
which  one  is  liable?  No  other  points  are  presented  in  the 
argument  of  counsel  for  our  decision. 

As  our  conclusions  upon  the  second  point  above  stated  are 
decisive  of  the  case,  it  will  be  unnecessary  to  examine  the 
others. 

The  rule  limiting  the  recovery  of  damage  to  "  the  natural 
and  proximate  consequence  of  the  act  complained  of"  is 
universally  admitted,  and  the  extreme  difficulty  in  its  prac- 
tical application  is  quite  as  widely  conceded.  The  difficulty 
results  not  from  any  defect  in  the  rule,  but  in  applying  a 
principle,  stated  in  such  general  language,  to  cases  of  diverse 
facts.  The  dividing  line  between  proximate  and  remote  dam- 
ages is  so  indistinct,  if  not  often  quite  invisible,  that  there  is, 
on  either  side,  a  vast  field  of  doubtful  and  disputed  ground. 
In  exploring  this  ground  there  is  to  be  had  but  little  aid  from 
the  light  of  adjudicated  cases.  The  course  followed  in  each 
case,  which  is  declared  to  be  upon  one  side  or  the  other  of 
the  dividing  line,  is  plainly  marked  out,  but  no  undisputed 
landmarks  are  established  by  which  the  dividing  line  itself 
may  be  precisely  traced.  As  so  little  aid  is  derived  from 
precedents  in  arriving  at  the  conclusion  we  have  reached,  it 
would  prove  quite  useless  to  refer  to  them. 

Damage  to  be  recoverable  must  be  the  proximate  conse- 
quence of  the  act  complained  of;  that  is,  it  must  be  the 
consequence  that  follows  the  act,  and  not  the  secondary  re- 


DUBUQUE  WOOD  AND  COAL  ASSOC,  v.  DUBUQUE.      87 

suit  from  the  first  consequence,  either  alone  or  in  combination 
with  other  circumstances. 

An  illustration  will  serve  the  purpose  of  more  clearly  ex- 
pressing the  principle.  An  owner  of  lumber  deposited  upon 
the  levee  of  the  city  of  Dubuque,  exposed  to  the  floods  of  the 
river,  starts  with  his  team  to  remove  it.  A  bridge  built  by 
the  cit}T  which  he  attempts  to  cross,  from  defects  therein 
falls,  and  his  horses  are  killed.  By  the  breaking  of  the  bridge 
and  the  loss  of  his  team,  he  is  delayed  in  removing  his  prop- 
erty. On  account  of  this  delay  his  lumber  is  carried  away 
by  the  flood  and  lost.  The  proximate  consequence  of  the 
negligence  of  the  city  is  the  loss  of  his  horses.  The  second- 
ary consequence,  resulting  from  the  first  consequence,  is  the 
delay  in  removing  the  lumber,  which,  finalby,  caused  its  loss. 
Damage  on  account  of  the  first  is  recoverable,  but  for  the 
second,  is  denied. 

Applying  these  principles  to  the  case  before  us,  we  con- 
clude that  the  losses  for  which  recovery  is  sought  were  not 
the  proximate  consequence  of  the  negligence  of  defendants 
complained  of  in  the  petition.  The  proximate  consequence 
of  the  bridge  of  defendants  becoming  impassable  was  not  the 
loss  of  plaintiff's  wood.  The  loss  resulted  from  the  flood. 
It  does  not  appear  from  the  petition  that  the  negligence  of 
defendants  in  failing  to  repair  the  bridge,  whereby  plaintiff 
was  prevented  removing  the  wood,  exposed  plaintiff  to  any 
other  loss.  All  that  can  be  said  is,  that  defendants'  negli- 
gence caused  plaintiff  to  delay  removing  the  wood ;  the 
delay  exposed  the  wood  to  the  flood,  whereby  it  was  lost. 
Plaintiff's  damage,  then,  was  not  the  proximate  consequence 
of  the  acts  of  defendant  complained  of,  but  resulting  from  a 
remote  consequence  joined  with  another  circumstance,  the 
flood.  The  case  is  not  distinguishable  from  the  supposed 
case  above  stated. 

In  our  opinion  the  demurrer  was  correctly  sustained.  The 
other  points  raised  in  the  case  need  not  be  noticed. 

Affirmed. 


88  CASES  ON  DAMAGES. 


EHRGOTT  v.  MAYOR  OF  NEW  YORK. 

New  York,  1884.     96  N.  Y.  264. 

Earl,  J.1  This  action  was  commenced  to  recover  dam- 
ages sustained  b}'  the  plaintiff  from  personal  injuries  received 
by  him  in  consequence  of  a  defect  in  a  street  in  the  city  of 
New  York.  The  accident  occurred  in  the  night  time,  while 
it  was  raining.  When  the  plaintiff  drove  into  the  ditch  in  the 
street  his  horses  jumped,  the  axle  of  his  carriage  was  broken, 
and  he  was  dragged  partly  over  the  dash-board.  With  the 
assistance  of  men  who  came  to  his  help,  his  horses  were  taken 
from  the  carriage,  and  he  procured  another  carriage  and  har- 
nessed his  horses  to  that,  and  drove  several  miles  to  his  home 
with  his  wife,  sister,  and  son.  To  report  the  accident  to  the 
police  station  near  by,  to  change  carriages,  and  drive  to  his 
home,  took  several  hours,  and  during  that  time  he  was  ex- 
posed to  the  cold  and  rain,  and  his  clothes  became  perfectly 
saturated  with  water.  He  was  not  that  night  aware  that  he 
had  sustained  any  injury,  and  the  next  morning  first  became 
sensible  of  the  pain  in  his  back.  Upon  the  trial  the  plaintiff 
gave  evidence  tending  to  show  that  the  diseases  from  which 
he  was  suffering  were  results  of  the  strain  and  shock,  caused 
b}T  his  being  dragged  over  the  dash-board  ;  and  the  defendant 
gave  evidence  tending  to  show  that  the  diseases  were  the 
result  of  the  subsequent  exposure  to  the  cold  and  rain.  .  .  . 

The  defendant  requested  the  judge  to  charge  "  that  the 
spinal  injuries  from  which  the  plaintiff  now  suffers,  if  they 
were  occasioned  by  the  exposure  to  the  wet,  following  the 
accident,  as  the  defendant  contends  they  were,  are  not  the 
natural  and  necessaiy  result  of  the  accident,  and  are  not  such 
as  might  reasonably  be  supposed  to  have  been  in  the  contem- 
plation of  the  parties  as  the  probable  outgrowth  of  the  acci- 
dent, and,  therefore,  in  the  contemplation  of  the  law,  the 
1  Part  of  the  opinion  is  omitted. 


EHRGOTT  v.   MAYOR  OF  NEW  YORK.       89 

defendant  is  not  liable  therefor."  The  judge  declined  to 
charge  this,  except  as  he  had  already  charged,  and  the  de- 
fendant's counsel  excepted.  .  .  . 

It  is  sometimes  said  that  a  party  charged  with  a  tort,  or 
with  breach  of  contract,  is  liable  for  such  damages  as  may 
reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties  at  the  time,  or  with  such  damage  as  may  reason- 
ably be  expected  to  result,  under  ordinary  circumstances, 
from  the  misconduct,  or  with  such  damages  as  ought  to  have 
been  foreseen  or  expected  in  the  light  of  the  attending  cir- 
cumstances, or  in  the  ordinary  course  of  things.  These 
various  modes  of  stating  the  rule  are  all  apt  to  be  misleading, 
and  in  most  cases  are  absolutely  worthless  as  guides  to  the 
jury.  (Leonard  v.  N.  Y.,  &c,  Tel.  Co.,  41  N.  Y.  544.) 
Parties,  when  they  make  contracts,  usually  contemplate  their 
performance  and  not  their  breach,  and  the  consequences  of  a 
breach  are  not  usually  in  their  minds,  and  it  is  useless  to 
adopt  a  fiction  in  any  case  that  they  were.  When  a  party 
commits  a  tort  resulting  in  a  personal  injur}',  he  cannot 
foresee  or  contemplate  the  consequences  of  his  tortious  act. 
He  ma}*  knock  a  man  down,  and  his  stroke  may,  months 
after,  end  in  paralysis  or  in  death,  —  results  which  no  one 
anticipated  or  could  have  foreseen.  A  city  may  leave  a  street 
out  of  repair,  and  no  one  can  anticipate  the  possible  accidents 
which  may  happen,  or  the  injuries  which  may  be  caused. 
Here,  nothing  short  of  Omniscience  could  have  foreseen  for 
a  minute  what  the  result  and  effect  of  driving  into  this  ditch 
would  be.  Even  for  weeks  and  months  after  the  accident 
the  most  expert  physicians  could  not  tell  the  extent  of  the 
injuries. 

The  true  rule,  broadly  stated,  is  that  a  wrong-doer  is  liable 
for  the  damages  which  he  causes  by  his  misconduct.  But 
this  rule  must  be  practicable  and  reasonable,  and  hence  it 
has  its  limitations.  A  rule  to  be  of  practicable  value  in  the 
administration  of  the  law,  must  be  reasonably  certain.  It  is 
impossible  to  trace  any  wrong  to  all  its  consequences.  They 
may  be  connected  together  and  involved  iu  an  infinite  cor* 


90  CASES  ON  DAMAGES. 

catenation  of  circumstances.  As  said  by  Lord  Bacon,  in  one 
of  his  maxims  (Bac.  Max.  Reg.  1)  :  "It  were  infinite  for  the 
law  to  judge  the  cause  of  causes,  and  their  impulsion  one  of 
another ;  therefore  it  contenteth  itself  with  the  immediate 
cause,  and  judgeth  of  acts  by  that,  without  looking  to  any 
further  degree."  The  best  statement  of  the  rule  is  that  a 
wrong-doer  is  responsible  for  the  natural  and  proximate  con- 
sequences of  his  misconduct ;  and  what  are  such  consequences 
must  generally  be  left  for  the  determination  of  the  jurj'. 
(Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S.  469.) 
We  are,  therefore,  of  opinion  that  the  judge  did  not  err  in 
refusing  to  charge  the  jury  that  the  defendant  was  liable 
"  onlj*  for  such  damages  as  might  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  the  plaintiff  and  defendant 
as  the  probable  result  of  the  accident." 


PENNSYLVANIA  RAILROAD  v.  WABASH,  ST.  LOUIS 
&  PACIFIC  RAILWAY. 

United  States  Supreme  Court,  1895.     157  U.  S.  225. 

Harlan,  J.1  On  the  7th  day  of  December,  1880,  the 
Wabash,  St.  Louis  &  Pacific  Railway  Company,  by  its  agent 
at  Omaha,  Neb.,  sold  to  one  W.  J.  Connell  a  railroad  coupon 
ticket,  purporting  to  be  good  to  the  holder  for  passage  over 
certain  railroads  extending  from  Omaha  to  the  city  of  New 
York,  one  of  which  was  the  road  belonging  to  the  Penns}d- 
vania  Railroad  Company,  and  extending  from  Philadelphia  to 
New  York. 

It  is  to  be  taken  upon  this  record  that  the  Wabash  Com- 
pany had  no  authority  to  sell  a  ticket  entitling  the  holder  to 
passage  over  the  appellant's  road  between  Philadelphia  and 
New  York.  Indeed,  the  Wabash  Company  had  notice  that 
the  Pennsylvania  Company  would  not  recognize  any  tickets 
sold  by  it. 

In  the  course  of  his  journey  to  the  East,  Connell  took  pas* 
1  Part  of  the  opinion  is  omitted. 


PENN.  R.  R.  v.  WABASH,  ST.  L.  &  PACIFIC  RAILWAY.      91 

sage  at  Philadelphia  on  one  of  the  appellant's  trains  for  New 
York.  Being  asked  by  the  conductor  for  his  ticket,  he  pre- 
sented the  Philadelphia-New  York  coupon  of  the  ticket 
purchased  at  Omaha.  The  conductor,  in  conformity  with 
instructions  from  appellant,  refused  to  accept  that  coupon  in 
payment  of  fare.  Connell  refused  to  make  payment  otherwise 
than  with  the  coupon  so  tendered  by  him,  and,  because  of 
such  refusal,  was  ejected  b}7  appellant's  conductor  from  the 
train,  and  left  at  a  wa}-  station. 

Connell  subsequently  sued  the  Pennsylvania  Railroad  Com- 
pany in  the  superior  court  of  Cook  County  to  recover  damages 
on  account  of  his  expulsion  from  the  train  of  that  company. 

In  a  suit  in  which  all  the  property  and  assets  of  the  Wabash 
Company  in  Illinois  were  in  course  of  administration,  and 
were  in  the  possession  of  the  court,  the  Pennsylvania  Rail- 
road Company  filed  intervening  petitions  and  asked  an  order 
directing  the  receivers  to  pay  the  sums  reasonably  expended 
by  it  in  and  about  the  defence  of  the  action  brought  by 
Connell.  .  .  . 

"We  are  clearly  of  opinion  that  no  such  liability  existed. 
The  Pennsylvania  Company  had  in  its  hands  a  simple  remedy 
for  the  wrongful  sale  by  the  Wabash  Company  of  a  ticket 
over  its  road  from  Philadelphia  to  New  York ;  nameby,  to 
refuse  to  recognize  that  ticket  by  whomsoever  presented.  It 
applied  that  remedy,  for  it  declined  to  accept  the  coupon 
tendered  by  Connell,  and  stood  upon  its  undoubted  right  to 
demand  money  for  his  fare.  As  between  the  two  railroad 
companies,  this  closed  the  matter  in  respect  to  the  unauthor- 
ized sale  by  the  Wabash  Company  of  a  ticket  for  passage 
over  the  Pennsylvania  road.  The  ejection  of  Connell  by  the 
Pennsylvania  Company  from  the  train  —  particularly  if  such 
ejection  was  accompanied  by  unnecessaiy  force  —  was  upon 
its  own  responsibilitj-,  and  was  not  made  legally  necessary  by 
anything  done  by  the  Wabash  Company  which  the  other  com- 
pany was  bound  to  recognize  or  respect.  It  had  no  direct 
connection  with  the  wrong  of  the  Wabash  Company  in  selling 
a  ticket  over  the  road  of  the  Pennsylvania  Company. 


92  CASES  ON  DAMAGES. 

HADLEY  v.  BAXENDALE. 

Exchequer,  1854.     9  Ex.  341. 

This  was  an~action  by  the  plaintiffs,  owners  of  a  steam 
grist-mill,  against  the  defendant,  a  carrier,  for  delay  in  de- 
livering two  pieces  of  iron,  being  the  broken  shaft  of  the  mill 
of  the  plaintiffs,  by  reason  of  which  delay  the  engineer  to 
whom  they  were  to  be  delivered  was  unable  to  supply  a  new 
shaft,  and  the  mill  of  the  plaintiffs  was  stopped,  and  the 
plaintiffs  lost  certain  profits  by  the  delay  of  their  business, 
which  was  laid  in  the  declaration  as  special  damage.  The 
defendant  paid  £25  into  court. 

At  the  trial,  before  Crompton,  J.,  at  the  Summer  Assizes 
for  Gloucester,  1853,  it  appeared  that  the  broken  shaft  was 
to  be  sent  to  the  engineer  as  a  model  for  a  new  one,  and  at 
the  time  of  the  contract  for  the  carriage  being  made,  the  de- 
fendant's clerk  was  informed  that  the  mill  was^  stopped  and 
that  the  shaft  must  be  sent  immediately.  It  farther  appeared 
that  its  delivery  at  its  destination  was  delayed  for  several 
days,  and,  consequentby,  the  plaintiffs  did  not  receive  the  new 
shaft  back  as  they  expected,  and  their  mill  was  kept  idle. 
The  learned  judge  left  the  question  of  damages  to  the  jury, 
although  it  was  objected  that  the  special  damage  was  too 
remote,  and  they  gave  a  verdict  for  the  plaintiffs  for  £25 
beyond  the  sum  paid  into  court. 

A  rule  nisi  for  a  new  trial  for  misdirection  was  obtained  in 
Michaelmas  term,  on  the  ground  that  the  learned  judge  ought 
to  have  told  the  jury  to  throw  out  of  their  consideration  the 
alleged  special  damage.1 

Alderson,  B.  We  think  that  there  ought  to  be  a  new 
trial  in  this  case ;  but,  in  so  doing,  we  deem  it  to  be  expe- 
dient and  necessary  to  state  explicitly  the  rule  which  the 

1  This  statement  of  the  case  is  taken  from  the  report  in  23  L.  J.  (n.s.) 
Ex.  179. 


HADLEY  v.  BAXENDALE.  93 

judge,  at  the  next  trial,  ought,  in  our  opinion,  to  direct  the 
jury  to  be  governed  by  when  they  estimate  the  damages. 

It  is,  indeed,  of  the  last  importance  that  we  should  do  this ; 
for,  if  the  jury  are  left  without  any  definite  rule  to  guide 
them,  it  will,  in  such  cases  as  these,  manifestly  lead  to  the 
greatest  injustice.  The  courts  have  done  this  on  several  occa- 
sions ;  and,  in  Blake  v.  Midland  Railway  Company,  21  L.  J., 
Q.  B.,  237,  the  court  granted  a  new  trial  on  this  very  ground, 
that  the  rule  had  not  been  definitely  laid  down  to  the  jury  by 
the  learned  judge  at  Nisi  Prius. 

"  There  are  certain  established  rules,"  this  court  says,  in 
Alder  v.  Keighley,  15  M.  &  W.  117,  "according  to  which 
the  jury  ought  to  find."  And  the  court,  in  that  case, 
adds:  "and  here  there  is  a  clear  rule,  that  the  amount 
which  would  have  been  received  if  the  contract  had  been 
kept,  is  the  measure  of  damages  if  the  contract  is  broken." 

Now  we  think  the  proper  rule  in  such  a  case  as  the  present 
is  this :  Where  two  parties  have  made  a  contract  which  one  \ 
of  them  has  broken,  the  damages  which  the  other  party  ought      \ 
to  receive  in  respect  of  such  breach  of  contract  should  be  such 
as  may  fairly  and  reasonably  be  considered  either  arising  ' 
naturally,  i.  e.,  according  to  the  usual  course  of  things,  from 
such  breach  of  contract  itself,  or  such  as  may  reasonably  be 
supposed  to  have  been  in  the  contemplation  of  both  parties,  at 
the  time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it.     Now,  if  the  special  circumstances  under  which 
the  contract  was  actually  made  were  commujncatfid--by  the  j 
plaintiffs  to  the  defendants,  and  thus  known  to  both  parties,  the  V  H 
damages  resulting  from  the  breach  of  such  a  contract,  which   1 
they  would  reasonably  contemplate,  would  be  the  amount  of    I 
injury  which  would  ordinarily  follow  from  a  breach  of  contract 
under  these  special  circumstances  so  known  and  communi- 
cated.    But,  on  the  other  hand,  if  these  special  circumstances 
were  wholly  unknown   to  the   party  breaking  the   contract, 
he,    at   the   most,    could   only  be  supposed  to  have  had  in 
his  contemplation  the  amount  of  injury  which  would  arise 
generally,  and  in  the  great  multitude  of  cases  not  affected  by 


>■ 


94  CASES  ON  DAMAGES. 

any  special  circumstances,  from  such  a  breach  of  contract.  For, 
had  the  special  circumstances  been  known,  the  parties  might 
have  specially  provided  for  the  breach  of  contract  by  special 
terms  as  to  the  damages  in  that  case  ;  and  of  this  advantage 
it  would  be  very  unjust  to  deprive  them.  Now  the  above 
principles  are  those  by  which  we  think  the  jury  ought  to  be 
guided  in  estimating  the  damages  arising  out  of  any  breach  of 
contract.  It  is  said  that  other  cases,  such  as  breaches  of 
contract  in  the  non-payment  of  money,  or  in  the  not  making 
a  good  title  to  land,  are  to  be  treated  as  exceptions  from  this, 
and  as  governed  by  a  conventional  rule.  But  as,  in  such 
cases,  both  parties  must  be  supposed  to  be  cognizant  of  that 
well-known  rule,  these  cases  may,  we  think,  be  more  properly 
classed  under  the  rule  above  enunciated  as  to  cases  under 
known  special  circumstances,  because  there  both  parties  may 
reasonably  be  presumed  to  contemplate  the  estimation  of  the 
amount  of  damages  according  to  the  conventional  rule.  Now, 
in  the  present  case,  if  we  are  to  apply  the  principles  above 
laid  down,  we  find  that  the  only  circumstances  here  communi- 
cated by  the  plaintiffs  to  the  defendants  at  the  time  the  con- 
tract was  made,  were,  that  the  article  to  be  carried  was  the 
broken  shaft  of  a  mill,  and  that  the  plaintiffs  were  the  millers 
of  that  mill.  But  how  do  these  circumstances  show  reason- 
ably that  the  profits  of  the  mill  must  be  stopped  by  an  un- 
reasonable delay  in  the  delivery  of  the  broken  shaft  by  the 
carrier  to  the  third  person?  Suppose  the  plaintiffs  had  an- 
other shaft  in  their  possession  put  up  or  putting  up  at  the  time, 
and  that  they  only  wished  to  send  back  the  broken  shaft  to 
the  engineer  who  made  it ;  it  is  clear  that  this  would  be  quite 
consistent  with  the  above  circumstances,  and  yet  the  unreason- 
able delay  in  the  delivery  would  have  no  effect  upon  the 
intermediate  profits  of  the  mill.  Or,  again,  suppose  that,  at 
the  time  of  the  delivery  to  the  carrier,  the  machinery  of  the 
mill  had  been  in  other  respects  defective,  then,  also,  the  same 
results  would  follow.  Here  it  is  true  that  the  shaft  was  actu- 
ally sent  back  to  serve  as  a  model  for  a  new  one,  and  that 
the  want  of  a  new  one  was  the  only  cause  of  the  stoppage  of 


CORY  v.  THAMES  IRONWORKS  &  SHIPBUILDING  CO.       95 

the  mill,  and  that  the  loss  of  profits  really  arose  from  not  send- 
ing down  the  new  shaft  in  proper  time,  and  that  this  arose 
from  the  delay  in  delivering  the  broken  one  to  serve  as  a 
model.  But  it  is  obvious  that,  in  the  great  multitude  of  cases 
of  millers  sending  off  broken  shafts  to  third  persons  by  a  car- 
rier under  ordinary  circumstances,  such  consequences  would 
not,  in  all  probability,  have  occurred ;  and  these  special  cir- 
cumstances were  here  never  communicated  by  the  plaintiffs 
to  the  defendants.  It  follows,  therefore,  that  the  loss  of 
profits  here  cannot  reasonably  be  considered  such  a  conse- 
quence of  the  breach  of  contract  as  could  have  been  fairly  and 
reasonably  contemplated  by  both  the  parties  when  they  made 
this  contract.  For  such  loss  would  neither  have  flowed  natu- 
rally from  the  breach  of  this  contract  in  the  great  multi- 
tude of  such  cases  occurring  under  ordinary  circumstances, 
nor  were  the  special  circumstances,  which,  perhaps,  would 
have  made  it  a  reasonable  and  natural  consequence  of  such 
breach  of  contract,  communicated  to  or  known  by  the  de- 
fendants. The  judge  ought,  therefore,  to  have  told  the  jury 
that,  upon  the  facts  then  before  them,  they  ought  not  to 
take  the  loss  of  profits  into  consideration  at  all  in  esti- 
mating the  damages.  There  must  therefore  be  a  new  trial 
in  this  case.  Rule  absolute. 


CORY  v.   THAMES    IRONWORKS    &   SHIPBUILD- 
ING COMPANY. 

Queen's  Bench,  18G8.     L.  R.  3  Q.  B.  181. 

This  was  an  issue  directed  by  the  Court  of  Chancery  under 
8  &  9  Vict.  c.  109,  to  ascertain  the  amount  of  damages  to 
which  the  plaintiffs  were  entitled,  inter  alia,  by  reason  of  the 
delay  by  the  defendants  in  the  delivery  of  the  hull  of  a  float- 
ing-boom derrick,  under  a  contract  of  sale. 

At  the  trial  before  Shee,  J.,  at  the  sittings  in  London,  after 
Hilary  Term,  1864,  a  verdict  was  taken  for  the  plaintiffs,  sub- 
ject to  a  case  to  be  stated  by  an  arbitrator. 


96  CASES  ON  DAMAGES. 

The  plaintiffs  are  coal  merchants  and  shipowners,  having 
a  very  large  import  trade  in  coal  from  Newcastle  and  other 
places  into  the  port  of  London.  The  defendants  are  iron 
manufacturers  and  shipbuilders  in  London. 

The  plaintiffs  had  introduced,  at  the  docks  where  they 
discharged  the  cargoes  of  coal  from  their  ships,  a  new  and 
expeditious  mode  of  unloading  the  coals  by  means  of  iron 
buckets,  which  were  worked  by  hydraulic  pressure  over  pow- 
erful cranes,  and  the  plaintiffs'  trade  having  considerably  in- 
creased, they  were  desirous  of  improving  the  accommodation 
offered  in  the  discharge  of  their  vessels  by  the  above  mode ; 
this  the  defendants  were  not  aware  of. 

The  defendants  agreed  to  sell  the  plaintiffs  a  floating-boom 
derrick,  and  to  deliver  it  before  the  1st  of  January,  1862. 
The  plaintiffs  purchased  the  derrick  for  the  purposes  of  their 
business,  in  order  to  erect  and  place  in  it,  as  they  in  fact 
did,  large  hydraulic  cranes  and  machinery,  such  as  they  had 
previously  used  at  the  docks,  and  by  means  of  these  cranes  to 
tranship  their  coals  from  colliers  into  barges  without  the  neces- 
sity for  any  intermediate  landing,  the  derrick,  for  this  purpose, 
being  moored  in  the  river  Thames,  and  the  plaintiffs  paying  the 
conservators  of  the  river  a  large  rent  for  allowing  it  to  remain 
there. 

The  derrick  was  the  first  vessel  of  the  kind  that  had  ever 
been  built  in  this  country,  and  the  purpose  to  which  the  plain- 
tiffs sought  to  apply  it  was  entirely  novel  and  exceptional. 
No  hull  or  other  vessel  had  ever  been  fitted  either  by  coal  mer- 
chants or  others  in  a  similar  way  or  for  a  similar  purpose  ;  and 
the  defendants  at  the  date  of  the  agreement  had  notice  that  the 
plaintiffs  purchased  the  derrick  for  the  purpose  of  their  busi- 
ness, considering  that  it  was  intended  to  be  used  as  a  coal  store ; 
but  they  had  no  notice  or  knowledge  of  the  special  object  for 
which  it  was  purchased,  and  to  which  it  was  actually  applied. 

At  the  date  of  the  agreement  the  defendants  believed 
that  the  plaintiffs  were  purchasing  the  derrick  for  the  purpose 
of  using  her  in  the  way  of  their  business  as  a  coal  store  ;  but 
the  plaintiffs  had  not  at  that  time  any  intention  of  applying 


CORY  v.  THAMES  IRONWORKS   &   SHIPBUILDING  CO.       97 

the  derrick  to  any  other  purpose  than  the  special  purpose  to 
which  she  was  in  fact  afterwards  applied. 

If  the  plaintiffs  had  been  prevented  from  applying  the 
derrick  to  the  special  purpose  for  which  she  was  purchased, 
and  to  which  she  was  applied,  they  would  have  endeavored  to 
sell  her  to  persons  in  the  hulk  trade  as  a  hulk  for  storing  coals, 
and  had  they  been  unable  to  sell  her,  they  could  and  would  Lave 
employed  her  in  that  trade  and  in  that  way  themselves ;  that 
was  the  most  obvious  use  to  which  such  a  vessel  was  capable 
of  being  applied  by  persons  in  the  plaintiffs'  business  ;  but  the 
hulk  trade  is  a  distinct  branch  of  the  coal  trade,  and  neither 
formed  nor  forms  any  part  of  the  business  carried  on  b}*  the 
plaintiffs  ;  and  the  derrick  being  an  entirely  novel  and  excep- 
tional vessel  and  the  first  of  the  kind  built,  no  vessel  of  the 
sort  had  ever  been  applied  to  such  a  purpose.  The  derrick 
was,  however,  capable  of  being  applied  to  and  profitably  em- 
ployed for  that  purpose,  and  had  she  been  purchased  for  that 
purpose  her  non-delivery  at  the  time  fixed  by  the  agreement 
would  have  occasioned  loss  and  damage  to  the  plaintiffs  to 
the  amount  of  £420. 

The  defendants  did  not  deliver  the  derrick  to  the  plaintiffs 
until  the  1st  of  July,  1862.  If  the  defendants  had  delivered 
the  hull  to  the  plaintiffs  in  proper  time,  the  plaintiffs  would 
have  realized  large  profits  by  the  use  of  it  in  the  aforesaid 
manner,  and  the}"  were  put  to  great  inconvenience  and  sus- 
tained great  loss  owing  to  their  not  having  possession  of  the 
hull  to  meet  the  great  increase  in  their  trade. 

The  plaintiffs  also  lost  £8  15s.  for  interest  upon  the  portion 
of  the  purchase-money  of  the  hull  paid  by  them  to  the  defend- 
ants before  delivery. 

The  question  for  the  opinion  of  the  court  was,  whether  the 
plaintiffs  were  entitled  to  recover  against  the  defendants  the 
whole  or  an}r,  and  which  of  the  above  heads  of  damage.1 

J.  C.  Brown,  Q.C.  (Watkin  Williams  with  him)  for  the 
plaintiffs.3 

1  This  statement  of  facts  has  been  somewhat  abridged. 
8  The  argument  for  the  plaintiffs  is  omitted. 
7 


98 


CASES  ON  DAMAGES. 


J.  D.  Coleridge,  Q.C.  (Garth,  Q.C.,  and  Philbrick  with 
him)  for  the  defendants.1  No  doubt  the  plaintiffs  are  entitled 
to  the  interest ;  bnt  they  are  not  entitled  to  the  £420.  This 
sum  is  the  damages  resulting  from  a  special  purpose,  within 
the  principle  of  Hadley  v.  Baxendale.  The  rule  laid  down  in 
Hadley  v.  Baxendale  is  that  the  plaintiff  can  only  recover  such 
damages  as  are  the  natural  result  of  the  breach  of  contract  in 
ordinary  circumstances,  or,  —  which  would  appear  to  be  an- 
other mode  of  expressing  the  same  thing,  —  what  were  in  the 
contemplation  of  both  parties  at  the  time  of  the  contract. 

[Blackburn,  J.  The  damages  are  to  be  what  would  be  the 
natural  consequences  of  a  breach  under  circumstances  which 
both  parties  were  aware  of.] 

[Cockburn,  C.J.  No  doubt,  in  order  to  recover  damage 
arising  from  a  special  purpose  the  buyer  must  have  communi- 
cated the  special  purpose  to  the  seller ;  but  there  is  one  thing 
which  must  alwa3"s  be  in  the  knowledge  of  both  parties,  which 
is,  that  the  thing  is  bought  for  the  purpose  of  being  in  some 
way  or  other  profitably  applied.] 

But  it  [the  use  to  which  the  defendants  supposed  the  hull 
was  intended  to  be  applied]  is  a  use  totally  distinct  from  that 
to  which  the  plaintiffs  applied  and  intended  to  apply  it. 

[Cockburn,  C.J.  The  two  parties  certainty  had  not  in 
their  common  contemplation  the  application  of  this  vessel  to 
any  one  specific  purpose.  The  plaintiffs  intended  to  apply  it 
in  their  trade,  but  to  the  special  purpose  of  transhipping  coals ; 
the  defendants  believed  that  the  plaintiffs  would  apply  it  to 
the  purpose  of  their  trade,  but  as  a  coal  store.  I  cannot, 
however,  assent  to  the  proposition  that,  because  the  seller 
does  not  know  the  purpose  to  which  the  buyer  intends  to  apply 
the  thing  bought,  but  believes  that  the  buyer  is  going  to  apply 
it  to  some  other  and  different  purpose,  if  the  buyer  sustains 
damage  from  the  non-delivery  of  the  thing,  he  is  to  be  shut  out 
from  recovering  any  damages  in  respect  of  the  loss  he  may 
have  sustained.  I  take  the  true  proposition  to  be  this.  If  the 
special  purpose  from  which  the  larger  profit  ma}-  be  obtained 
1  Part  of  the  argument  for  the  defendants  is  omitted. 


O^ 


L* 


^ 


V 


\f 


J 


COEY  v.  THAMES   IRONWORKS   &   SHIPBUILDING   CO.       99 

is  known  to  the  seller,  he  may  be  made  responsible  to  the  full 
extent.  But  if  the  two  parties  are  not  ad  idem  quoad  the 
use  to  which  the  article  is  to  be  applied,  then  you  can  only  take 
as  the  measure  of  damages  the  profit  which  would  result  from 
the  ordinary  use  of  the  article  for  the  purpose  for  which  the 
seller  supposed  it  was  bought.  And  the  arbitrator,  as  1  under- 
stand it,  finds  that  the  hull  was  capable  of  being  applied  profit- 
ably as  a  coal  store,  if  it  had  not  been  applied  by  the  plaintiffs 
to  their  special  purpose.] 

But  no  vessel  of  the  sort  had  ever  been  applied  to  such  a 
purpose  as  a  coal  store.  And  this  kind  of  damage  is  a  dam- 
age which  the  plaintiffs  never  suffered,  and  which  they  never 
contemplated  suffering. 

[Mellor,  J.  It  was  the  most  obvious  purpose  to  which 
such  a  vessel  could  be  applied  in  the  plaintiffs'  trade. 

Cockburn,  C.J.  And  the  purpose  to  which  it  ma}T  be 
fairly  supposed,  and  as  in  fact  the  defendants  did  suppose, 
that  the  plaintiffs  would  have  applied  it,  had  they  been  pre- 
vented by  the  failure  of  the  machinery,  or  any  other  cause, 
from  being  able  to  apply  it  to  their  special  purpose.  And  so 
far  as  the  defendants,  the  sellers,  expected  that  the  plaintiffs, 
the  buyers,  would  be  losers  by  their  non-delivery  of  the  vessel 
according  to  contract,  so  far  it  is  just  and  right  that  the  de- 
fendants should  be  responsible  in  damages.] 

That,  no  doubt,  would  be  a  just  rule  ;  but  it  is  not  the  rule 
laid  down  in  Hadley  v.  Baxendale. 

[Blackburn,  J.  That  argument  seems  to  assume  that  the 
principle  laid  down  in  Hadley  v.  Baxendale  is  that  the  dam- 
ages can  only  be  what  both  parties  contemplated,  at  the  time 
of  making  the  contract,  would  be  the  consequence  of  the  breach 
of  it ;  but  that  is  not  the  principle  laid  down  in  Hadley  v. 
Baxendale.  The  court  say:  "We  think  the  proper  rule  in 
such  a  case  as  the  present  is  this :  Where  two  parties  have 
made  a  contract  which  one  of  them  has  broken,  the  damages 
which  the  other  party  ought  to  receive  in  respect  of  such 
breach  of  contract  should  be  such  as  may  fairly  and  reasonably 
be  considered,  either  arising  naturallv,  i.  e.  according  to  the 


100  CASES  ON  DAMAGES. 

usual  course  of  things,  from  such  breach  of  contract  itself,"  — 
that  is  one  alternative,  —  "or  such  as  may  reasonably  be 
supposed  to  have  been  in  the  contemplation  of  both  parties, 
at  the  time  they  made  the  contract,  as  the  probable  result  of 
the  breach  of  it."  Now,  in  the  present  case  the  breach  of 
contract  was  the  non-delivery  at  the  agreed  time  of  a  hull 
capable  of  being  used  as  a  hulk  for  storing  coals,  and  the 
consequences  that  would  naturally  arise  from  such  non-deliv- 
ery of  it  would  be  that  the  purchaser  would  not  be  able  to 
earn  money  b}-  its  use,  and  this  loss  of  profit  during  the  delay 
would  be  the  measure  of  the  damages  caused  by  the  non- 
delivery.] 

Cockburn,  C.J.  I  think  the  construction  which  Mr. 
Coleridge  seeks  to  put  upon  the  case  of  Hadley  v.  Baxendale 
is  not  the  correct  construction  as  applicable  to  such  a  case  as 
this.  If  that  were  the  correct  construction,  it  would  be  at- 
tended with  most  mischievous  consequences,  because  this 
would  follow,  that  whenever  the  seller  was  not  made  aware  of 
the  particular  and  special  purpose  to  which  the  buyer  intended 
to  apply  the  thing  bought,  but  thought  it  was  for  some  other 
purpose,  he  would  be  relieved  entirely  from  making  any  com- 
pensation to  the  buj-er,  in  case  the  thing  was  not  delivered  in 
time,  and  so  loss  was  sustained  b}'  the  buyer ;  and  it  would  be 
entirely  in  the  power  of  the  seller  to  break  his  contract  with 
impunity.  That  would  necessarily  follow,  if  Mr.  Coleridge's 
interpretation  of  Hadley  v.  Baxendale  was  the  true  interpreta- 
tion. M}r  brother  Blackburn  has  pointed  out  that  that  is  not 
the  true  construction  of  the  language  which  the  court  used  in 
delivering  judgment  in  that  case.  As  I  said  in  the  course 
of  the  argument,  the  true  principle  is  this,  that  although  the 
buj'er  may  have  sustained  a  loss  from  the  non-delivery  of  an 
article  which  he  intended  to  appby  to  a  special  purpose,  and 
which,  if  applied  to  that  special  purpose,  would  have  been 
productive  of  a  larger  amount  of  profit,  the  seller  cannot  be 
called  upon  to  make  good  that  loss  if  it  was  not  within  the 
scope  of  his  contemplation  that  the  thing  would  be  applied  to 
the  purpose  from  which  such  larger  profit  might  result ;  and 


CORY  v.  THAMES  IRONWORKS  &  SHIPBUILDING  C6.      101 

although,  in  point  of  fact,  the  buyer  does  sustain  damage 
to  that  extent,  it  would  not  be  reasonable  or  just  that  the 
seller  should  be  called  upon  to  pay  it  to  that  extent ;  but  to 
the  extent  to  which  the  seller  contemplated  that,  in  the  event 
of  his  not  fulfilling  his  contract  by  the  delivery  of  the  article, 
the  profit  which  would  be  realized  if  the  article  had  been  deliv- 
ered would  be  lost  to  the  other  party,  to  that  extent  he  ought 
to  pay.  The  buyer  has  lost  the  larger  amount,  and  there  can 
be  no  hardship  or  injustice  in  making  the  seller  liable  to  com- 
pensate him  in  damages  so  far  as  the  seller  understood  and 
believed  that  the  article  would  be  applied  to  the  ordinary 
purposes  to  which  it  was  capable  of  being  applied.  I  think, 
therefore,  that  ought  to  be  the  measure  of  damages,  and  I  do 
not  see  that  there  is  anything  in  Hadley  v.  Baxendale  which 
at  all  conflicts  with  this. 

Blackburn,  J.  I  am  entirely  of  the  same  opinion.  I  think 
it  all  comes  round  to  this :  The  measure  of  damages  when  a 
party  has  not  fulfilled  his  contract  is  what  might  be  reason- 
ably expected  in  the  ordinary  course  of  things  to  flow  from 
the  non-fulfilment  of  the  contract,  not  more  than  that,  but 
what  might  be  reasonably  expected  to  flow  from  the  non- 
fulfilment  of  the  contract  in  the  ordinary  state  of  things,  and 
to  be  the  natural  consequences  of  it.  The  reason  why  the 
damages  are  confined  to  that  is,  I  think,  pretty  obvious,  viz. 
that  if  the  damage  were  exceptional  and  unnatural  damage, 
to  be  made  liable  for  that  would  be  hard  upon  the  seller,  be- 
cause if  he  had  known  what  the  consequence  would  be  he 
would  probably  have  stipulated  for  more  time,  or,  at  all 
events,  have  used  greater  exertions  if  he  knew  that  that 
extreme  mischief  would  follow  from  the  non-fulfilment  of  his 
contract.  On  the  other  hand,  if  the  party  has  knowledge  of 
circumstances  which  would  make  the  damages  more  exten- 
sive than  they  would  be  in  an  ordinary  case,  he  would  be 
liable  to  the  special  consequences,  because  he  has  knowledge 
of  the  circumstances  which  would  make  the  natural  conse- 
quences greater  than  in  the  other  case.  But  Mr.  Coleridge's 
argument  would  come  to  this,  that  the  damages  could  never 


7 


102  CASES  ON  DAMAGES. 

be  anything  but  what  both  parties  contemplated ;  and  where 
the  buyer  intended  to  apply  the  thing  to  a  purpose  which  would 
make  the  damages  greater,  and  did  not  intend  to  apply  it  to 
the  purpose  which  the  seller  supposed  he  intended  to  apply  it, 
the  consequence  would  be  to  set  the  defendant  free  altogether. 
That  would  not  be  just,  and  I  do  not  think  that  was  at  all 
meant  to  be  expressed  in  Hadley  v.  Baxendale.  Here  the 
arbitrator  has  found  that  what  the  defendants  supposed  when 
they  were  agi-eeing  to  furnish  the  derrick  was  that  it  was 
to  be  employed  in  the  most  obvious  manner  to  earn  money, 
which  the  arbitrator  assesses  at  £420  during  the  six  months' 
delay ;  and  as  I  believe  the  natural  consequence  of  not  de« 
livering  the  derrick  was  that  that  sum  was  lost,  I  think  the 
plaintiffs  should  recover  to  that  extent. 

Mellor,  J.  I  am  entirely  of  the  same  opinion.  The  ques- 
tion is,  what  is  the  limit  of  damages  which  are  to  be  given 
against  the  defendants  for  the  breach  of  this  contract?  They 
will  be  the  damages  naturally  resulting,  and  which  might  rea- 
sonably be  in  contemplation  of  the  parties  as  likely  to  flow, 
from  the  breach  of  such  contract.  It  is  not  because  the  par- 
ties are  not  precisely  ad  idem  as  to  the  use  of  the  article  in 
question  that  the  defendants  are  not  to  pay  any  damages. 
Both  parties  contemplated  a  profitable  use  of  the  derrick ; 
and  when  one  finds  that  the  defendants  contemplated  a  par- 
ticular use  of  it  as  the  obvious  mode  in  which  it  might  be  used, 
I  think  as  against  the  plaintiffs  they  cannot  complain  that  the 
damages  do  not  extend  beyond  that  which  they  contemplated  as 
the  amount  likely  to  result  from  their  own  breach  of  contract. 
Judgment  for  the  plaintiffs  accordingly. 


HORNE  v.  MIDLAND  RAILWAY. 

Common  Pleas,  1872.    L.  R.  7  C.  P.  583. 

Willes,  J.  This  case  raises  a  very  nice  question  upon  the 
measure  of  damages  to  which  a  common  carrier  is  liable  for  a 
breach  of  his  contract  to  carry  goods.   It  would  seem  that  the 


HORNE  v.  MIDLAND  RAILWAY.  103 

damages  which  he  is  to  pay  for  a  late  delivery  should  be  the 
amount  of  the  loss  which  in  the  ordinary  course  of  things 
would  result  from  his  neglect.  The  ordinary  consequence  of 
the  non-delivery  of  the  goods  here  on  the  3rd  of  February 
would  be  that  the  consignee  might  reject  them,  and  so  they 
would  be  thrown  upon  the  market  generally,  instead  of  going 
to  the  particular  purchaser ;  and  the  measure  of  damages 
would  ordinarily  be  in  respect  of  the  trouble  to  which  the 
consignor  would  be  put  in  disposing  of  them  to  another  cus- 
tomer, and  the  difference  between  the  value  of  the  goods  on 
the  3rd  and  the  amount  realized  by  a  reasonable  sale.  That 
prima  facie  would  be  the  sum  to  be  paid,  in  the  absence  of 
some  notice  to  the  carrier  which  would  render  him  liable 
for  something  more  special.  These  consequences  would 
refer  to  the  value  of  the  goods  at  the  time  of  their  delivery  to 
the  carrier,  the  goods  being  consigned  to  an  ordinary  market, 
and  being  goods  in  daily  use  and  not  subject  to  much  fluc- 
tuation in  price.  In  the  present  case,  taking  2s.  9d.  per 
pair  as  the  value  of  the  shoes,  the  ordinary  damages  would 
be  the  trouble  the  plaintiffs  were  put  to  in  procuring  some  one 
to  take  them  at  that  price,  plus  the  difference,  if  any,  in  the 
market  value  between  the  3rd  and  the  4th  of  February.  I  find 
nothing  in  the  case  to  show  that  there  was  an}'  diminution  in 
the  value  between  those  days.  The  plaintiffs'  claim,  therefore, 
in  that  respect  would  be  covered  by  the  £20  paid  into  court. 

But  they  claim  to  be  entitled  to  £267  3s.  9&  over  and 
above  that  sum,  on  the  ground  that  these  shoes  had  been 
sold  by  them  at  is.  a  pair  to  a  consignee  who  required  them 
for  a  contract  with  a  French  house  for  supply  to  the  French 
arm}*,  which  price  he  would  have  been  bound  to  pay  if  the 
shoes  had  been  delivered  on  the  3rd  of  February.  The  special 
price  which  the  consignee  had  agreed  to  pay  was  the  conse- 
quence of  the  extraordinary  demand  arising  from  the  wants 
of  the  French  army ;  and  the  refusal  of  the  consignee  to 
accept  the  goods  on  the  4th  was  caused  by  the  cessation  of 
the  demand  for  shoes  of  that  character  b}'  reason  of  the  war 
having  come  to  an  end.     The  market-price,   therefore,  we 


104  CASES   ON  DAMAGES. 

must  assume  to  have  been  2s.  9d.  a  pair  when  the  shoes  were 
delivered  to  the  carriers  ;  and  the  circumstance  which  caused 
the  difference  was  that  the  plaintiffs  had  had  the  advantage  of 
a  contract  at  4s.  a  pair  before  the  extraordinary  demand  had 
ceased.  Was  that,  then,  an  exceptional  contract?  It  was  not, 
I  take  it,  at  the  time  the  contract  was  entered  into ;  but  it 
was  at  the  time  the  shoes  were  delivered  to  the  carriers.  The 
plaintiffs  sustained  a  loss  of  Is.  3c?.  a  pair  on  the  4595  pairs  of 
shoes  which  they  failed  to  deliver  in  pursuance  of  their  con- 
tract. It  was,  so  to  speak,  a  penalty  thrown  upon  them  by 
reason  of  the  breach  of  contract.  In  that  point  of  view,  the 
contract  was  an  exceptional  one  at  the  time  the  shoes  were 
delivered  to  the  carriers ;  and  they  ought  to  have  been 
informed  of  the  fact  that  by  reason  of  special  circumstances 
the  sellers  would,  if  the  delivery  had  taken  place  in  time, 
have  been  entitled  to  receive  from  the  consignee  a  larger 
price  for  the  shoes  than  they  would  have  been  entitled  to  in 
the  ordinary  course  of  trade.  It  must  be  remembered  that 
we  are  dealing  with  the  case  of  a  common  carrier,  who  is 
bound  to  accept  the  goods.  It  would  be  hard  indeed  if  the 
law  were  to  fix  him  with  the  further  liability  which  is  here 
sought  to  be  imposed  upon  him,  because  he  has  received  a 
notice  which  does  not  disclose  the  special  and  exceptional 
consequences  which  will  or  ma}'  result  from  a  delayed  deliv- 
eiy.  I  think  the  law  in  this  respect  has  gone  quite  as  far  as 
good  sense  warrants.  The  cases  as  to  the  measure  of  dam- 
ages for  a  tort  do  not  apply  to  a  case  of  contract.  That  was 
suggested  in  a  case  in  Bulstrode  (Everard  v.  Hopkins,  2  Bui. 
332),  but  the  notion  was  corrected  in  Hadley  v.  Baxendale. 
The  damages  are  to  be  limited  to  those  that  are  the  natural 
and  ordinary  consequences  which  ma}T  be  supposed  to  have 
been  in  the  contemplation  of  the  parties  at  the  time  of  mak- 
ing the  contract.  I  go  further.  I  adhere  to  what  I  said  in 
British  Columbia  Saw-Mill  Co.  v.  Nettleship,  Law  Rep.  3  C.  P. 
499,  at  p.  509,  viz.  that  "the  knowledge  must  be  brought 
home  to  the  party  sought  to  be  charged,  under  such  circum- 
stances that  he  must  know  that  the  person  he  contracts  with 


SMITH   v.  GREEN.  105 

reasonably  believes  that  he  accepts  the  contract  with  the 
special  condition  attached  to  it."  Was  there  any  notice  here 
that  the  defendants  would  be  held  accountable  for  the  partic- 
ular damages  now  claimed  ?  In  the  ordinary  course  of  things, 
the  value  of  the  shoes  was  2s.  del.  a  pair  at  the  time  they  were 
delivered  to  the  defendants  to  be  carried.  There  was  no  change 
in  their  market  value  between  the  3rd  of  February  and  the 
4th ;  and  no  notice  to  the  carriers  that  the  consignees  had 
contracted  to  pay  for  them  the  exceptional  price  of  4s.  a  pair. 
The  defendants  had  no  notice  of  the  penalty,  so  to  speak, 
which  a  delay  in  the  delivery  would  impose  upon  the  plain- 
tiffs. It  would,  as  it  seems  to  me,  be  an  extraordinary 
result  to  arrive  at,  to  hold  that  a  mere  notice  to  the  carriers 
that  the  shoes  would  be  thrown  upon  the  hands  of  the  con- 
signors if  they  did  not  reach  the  consignees  by  the  3rd  of 
February,  should  fix  them  with  so  large  a  claim,  by  reason  of 
facts  which  were  existing  in  the  minds  of  the  consignors,  but 
were  not  communicated  to  the  carriers  at  the  time. 

For  these  reasons  I  come  to  the  conclusion  that  enough 
has  been  paid  into  court  to  cover  all  the  damages  which  the 
plaintiffs  are  entitled  to  recover,  and  that  there  must  be 
judgment  for  the  defendants.1 


SMITH  v.  GREEN. 

Common  Pleas  Division,  1875.     1  C.  P.  D.  92. 

Lord  Coleridge,  C.J.  I  am  of  opinion  that  there  should 
be  no  rule  in  this  case.  The  action  is  brought  for  the  breach 
of  a  warranty  upon  the  sale  of  a  cow,  that  she  was  free  from 
foot  and  mouth  disease  ;  and  it  appeared  that  the  cow  was,  at 
the  time  of  the  sale,  affected  with  that  disease,  and  that  the 
buyer,  who  was  a  farmer,  having  placed  her  along  with  other 

1  Keating,  J.,  concurred.  Affirmed  in  the  Exchequer  Chamber,  L.  R 
8  C.  P.  131. 


106  CASES  ON  DAMAGES. 

cows,  the  disease  was  communicated  to  them,  and  that  she  and 
some  of  them  died.  Besides  a  count  upon  the  warranty,  the 
declaration  contained  a  count  charging  the  defendant  with  a 
false  and  fraudulent  representation  that  the  cow  in  question 
was  free  from  the  complaint;  but  the  jury  negatived  the 
alleged  fraud.  We  are  asked  to  grant  a  new  trial  on  the 
ground  that  my  brother  Archibald  misdirected  the  jury  in 
telling  them  that,  in  estimating  the  damages  to  which  the 
plaintiff  was  entitled  for  the  breach  of  warranty,  they  might 
take  into  their  consideration  the  fact  that  the  buyer  was  a 
farmer,  and  that  the  seller  knew,  or  must  be  taken  to  have 
known,  that  the  diseased  cow  would  be  placed  with  other 
cows ;  and  that,  if  they  found  that  the  defendant  knew  that 
fact,  and  that  in  the  ordinary  course  of  his  business  the  plain- 
tiff would  so  place  her,  then  the  loss  of  the  other  cows  might 
fairly  be  considered  to  be  the  natural  and  necessary  conse- 
quence of  the  defendant's  breach  of  warranty,  and  they  might 
assess  the  damages  accordingly.  I  am  of  opinion  that  that 
direction  was  perfectly  correct,  and  that  the  jury  were  quite 
right  in  taking  that  circumstance  into  account.  The  facts 
seem  to  me  to  bring  the  case  clearly  within  the  rule  laid 
down  by  the  Court  of  Exchequer  in  Hadley  v.  Baxendale.  It 
is  not  necessarj"  to  consider  whether  the  representation  as  to 
the  state  of  the  cow  which  was  the  subject  of  sale  was 
fraudulent  or  not,  because  the  rule  is,  that,  where  a  party  to 
a  bargain  makes  an  untrue  statement  as  to  the  subject  of  sale, 
and  damage  results  therefrom  to  the  other  part}*,  the  seller  is 
answerable  for  such  damage.  Randall  v.  Raper,  E.  B.  &  E.  84  ; 
27  L.  J.,  Q.  B.,  266,  proceeds  upon  that  footing.  There  was 
no  fraud  there  ;  but  the  defendant  sold  seed  which  turned  out 
to  be  of  a  kind  different  from  that  which  he  warranted  it  to  be, 
and  the  plaintiff  having  sown  it,  and  a  wrong  crop  having  come 
up,  he  was  held  entitled  to  recover  the  difference  in  value  of 
the  crop  as  it  was  and  as  it  ought  to  have  been.  In  giving 
judgment,  Lord  Campbell  says  (E.  B.  &  E.  at  p.  88)  :  "  It  was 
a  probable,  a  natural,  and  a  necessary  consequence  of  this 
seed  not  being  chevalier  barley  that  it  did  not  produce  the 


HAMMOND  v.  BUSSEY.  107 

expected  quantity  of  grain.  That  is  a  consequence  not  de- 
pending upon  the  quality  of  the  soil,  but  one  necessarily 
resulting  from  the  breach  of  contract  as  to  the  quality  of  the 
seed."  And  Erie,  J.,  said  (E.  B.  &  E.  at  p.  89)  :  "  The  war- 
ranty is,  that  the  barley  sold  should  be  chevalier  barle}'.  The 
natural  consequence  of  the  breach  of  such  a  warranty  is,  that 
the  barley  which  has  been  delivered  having  been  sown,  and 
not  being  chevalier  barley,  an  inferior  crop  has  been  pro- 
duced. This  damage  naturally  results  from  the  breach  of  the 
warranty,  and  the  ordinary  measure  of  it  would  be  the  differ- 
ence in  value  between  the  inferior  crop  produced  and  that 
which  would  have  been  produced  from  chevalier  barley :  that 
is  not  inconsistent  with  Hadley  v.  Baxendale."  There  are 
many  other  cases  (some  of  which  have  been  cited)  to  the 
same  effect.  It  seems  to  me  that  my  brother  Archibald  cor- 
rectly laid  down  the  law  in  accordance  with  those  authorities  ; 
and,  it  being  fairly  admitted  that  there  was  evidence  on  both 
sides,  and  the  learned  judge  not  being  dissatisfied,  I  see  no 
reason  to  doubt  that  the  jury  came  to  a  right  conclusion.1 


HAMMOND  v.  BUSSEY. 

Court  of  Appeal,  1887.     20  Q.  B.  Div.  79. 

Lord  Esher,  M.  R.  In  this  case  the  plaintiffs  bought  from 
the  defendant  "  steam-coal,"  which  was  to  be  coal  suitable  for 
use  on  steamers.  At  the  time  when  the  defendant  sold  the 
coal,  he  knew  that  the  plaintiffs  were  buying  the  coal  in  order 
to  sell  it  again  to  the  owners  of  steamers  calling  at  Dover  to 
be  used  as  steam-coal  on  such  steamers  ;  and  he  therefore 
knew  that  the  plaintiffs  would  enter  into  contracts  with  others 
similar  to  the  contract  he  himself  had  made  with  the  plaintiffs, 
that  is  to  sa}-,  into  contracts  for  the  sale  of  steam-coal,  which 
would  amount  to  a  warranty  that  the  coal  was  reasonably  fit 

1  Brett  and  Grove,  JJ.,  delivered  concurring  opinions. 


108  CASES   ON  DAMAGES. 

to  be  used  for  the  purposes  of  steam-coal  on  board  steamers. 
He  did  not  know,  it  is  true,  with  what  specific  persons  the 
plaintiffs  would  make  such  contracts,  but  that  seems  to  me 
immaterial.  The  defendant  supplied  under  the  contract  coal 
that  was  not  reasonably  fit  to  be  used  as  such  steam-coal,  that 
is  to  say,  something  different  from  that  which  he  had  con- 
tracted to  supply.  The  fact  that  this  was  so  was  not  a  fact 
which  would  be  patent  to  the  plaintiffs  on  inspection  of  the 
coal ;  it  could  only  be  found  out  when  it  came  to  be  used, 
which  was  not  by  the  plaintiffs,  but  by  their  sub-vendees. 
Such  a  breach  of  such  a  contract  with  regard  to  such  a  subject- 
matter  necessarily  made  the  plaintiffs  liable  to  an  action  by 
their  sub-vendees,  and  the  result  was  the  plaintiffs  were  sued 
for  damages  by  their  sub-vendees.  The  plaintiffs,  when  sued, 
would  be  in  the  difficulty  that  they  had  had  no  opportunity, 
at  the  time  when  they  entered  into  the  sub-contract,  or  when 
the}'  delivered  the  coal,  of  knowing  whether  the  coal  answered 
the  description  given  in  such  sub-contract.  What  then  was 
the  plaintiffs'  position ?  "Was  it  reasonable  that  they  should 
take  the  mere  word  of  the  persons  making  a  claim  upon  them 
that  the  coal  was,  not  merely  bad,  but  so  bad  that  it  could 
not  reasonably  be  considered  fit  for  use  as  steam-coal  on 
steamships?  Was  it  reasonable  that  the}'  should,  whether 
they  were  dealing  with  the  matter  on  their  own  account  or  on 
account  of  the  defendant,  submit  to  such  a  claim  without 
having  in  any  way  tested  it? 

If  the  defect  in  the  coal  had  been  one  which  would  have 
been  patent  on  inspection,  and  which  the  plaintiffs  could 
have  seen  before  they  sold  the  coal  again,  the  case  might 
have  assumed  a  different  aspect.  That  not  being  so,  the 
plaintiffs  would  have  nothing  to  rely  upon  at  first  but  the 
mere  word  of  the  sub- vendees.  Under  those  circumstances  it 
would  not  have  been  reasonable,  either  on  their  own  account 
or  on  that  of  the  defendant,  for  the  plaintiffs  to  submit  to 
judgment  at  once  without  defending  the  action  or  testing  the 
claim  in  any  way.  If  they  were  to  defend  the  action,  of 
course  they  would  not  be  sure  to  win  ;  whether  they  would 


HAMMOND   v.  BUSSEY.  109 

win  or  lose  would  depend  on  the  extent  to  which  the  evidence 
went  as  to  the  quality  of  the  coal,  of  which  the  plaintiffs  could 
not  judge,  and  which  they  probably  could  not  satisfactorily 
ascertain  or  prove  without  the  assistance  of  the  defendant. 
In  order  to  make  themselves  as  safe  as  possible  in  this  respect, 
the  plaintiffs  gave  notice  of  the  claim  against  them  to  the 
present  defendant,  and  thereupon  the  defendant  insisted  that 
the  coal  he  had  supplied  was  according  to  contract.  The 
value  of  that  fact  is  to  show  the  plaintiffs'  position,  and  to 
make  it  still  more  reasonable  that  they  should  defend  the 
action  by  their  sub- vendees  against  them.  They  accordingly 
defended  the  action,  and  of  course  would  become  liable  to 
costs  in  that  action  if,  by  reason  of  any  breach  of  contract  by 
the  defendant,  the  defence  was  unsuccessful.  That  defence 
appears  to  have  turned  entirely  on  the  question  of  breach  of 
warranty.  There  is  nothing  to  show  that  it  depended  on 
anything  else,  or  that  any  damages  were  given  except  for  the 
breach  of  warranty.  The  defendant  has  admitted  that  the 
damages  given  in  that  action  were  merely  the  damages  natu- 
rally resulting  from  the  breach  of  warranty,  for  he  has  paid 
the  amount  of  them  into  court  in  this  action.  Furthermore, 
it  is  not  suggested  that  the  costs  which  the  plaintiffs  incurred 
were  extravagantly  or  recklessl}*  incurred,  or  that  the}*  are 
anything  but  fair  and  honest  costs  of  a  fair  and  honest 
defence.  The  plaintiffs  sue  the  defendant  for  the  damages 
occasioned  by  his  admitted  breach  of  contract,  viz.,  in  supply 
ing  coal  not  according  to  contract.  The  question  is,  what 
are  the  damages  which  they  can  recover?  We  find  the  rule 
of  law  as  to  measure  of  damages  enunciated  in  the  case  of 
Hadley  v.  Baxendalc.  It  may  be  that  the  rule  so  laid  down 
was  not  necessary  for  the  purpose  of  deciding  that  case,  but 
it  is  far  too  late  to  question  it.  The  rule,  though  frequently 
commented  upon,  has  been  over  and  over  again  adopted  by 
the  courts,  and  must  now  be  considered  to  be  the  law  on  the 
subject.  We  must  therefore  treat  the  present  case  on  the 
footing  that  the  question  is  as  to  the  true  application  of  that 
rule  to  the  measure  of  damages  for  such  a  breach  of  such  a 


110  CASES  ON  DAMAGES. 

contract  under  such  circumstances  as  we  have  to  deal  with 
here.     We  have  not  got  to  determine  how  that  rule  would 
apply  to  other  breaches  of  other  contracts  under  other  circum- 
stances than  those  we  have  now  to  consider.    The  rule  is  laid 
down  thus :  "  Where  two  parties  have  made  a  contract  which 
one  of  them  has  broken,  the  damages  which  the  other  party 
ought  to  receive  in  respect  of  such  breach  of  contract "  —  it 
is  to  be  observed  in  passing  that  the  rule  is  not  contemplating 
a  breach  of  a  contract  to  pay  damages,  but  the  damages 
which  are  recoverable  in  respect  of  a  breach  —  "should  be 
such  as  may  fairl}-  and  reasonably  be  considered  either  arising 
naturally,  i.  e.,  according  to  the  usual  course  of  things,  from 
such  breach  of  contract  itself."     That  is  the  enunciation  of 
the  rule  with  regard  to  damages  for  a  breach  of  contract 
where  no  special  circumstances  arise,  and  would  apply  to  this 
case  if  there  had  been  no  sub-contract  which  the  defendant 
knew  to  exist  or  to  be  likely  to  be  made.     The  rule  goes  on 
to  state  what  the  measure  of  damages  is  where  there  are 
special  circumstances,  as  follows :  "or  such  as  may  reason- 
ably be  supposed  to  have  been  in  the  contemplation  of  both 
parties,  at  the  time  they  made  the  contract,  as  the  probable 
result  of  the  breach  of  it."     It  has  been  argued  that  these 
words  are  not  an  enlargement  of  the  former  part  of  the  rule, 
but  I  cannot  take  that  view  of  them.     It  is  to  be  observed 
that  the  words  are  not  "  such  damages  as  were  in  fact  in  the 
contemplation  of  the  parties  at  the  time  they  made  the  con- 
tract," which  would  have  raised  a  question  of  fact  for  the 
jury,  but  "  such  as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  the  parties,"  not  as  the  inevitable, 
but  as  "the  probable  result  of  the  breach."     The  next  sen- 
tence of  the  judgment  is,  I  think,  to  be  considered  rather  as 
a  valuable  exemplification  of  the  rule,  an  illustration  of  the 
circumstances  under  which  the   second  branch  of  the  rule 
would  apply,  than  as  part  of  the  rule  itself.     It  proceeds : 
"  Now,  if  the  special  circumstances  under  which  the  contract 
was  actually  made  were  communicated  by  the  plaintiffs  to  the 
defendants,  and  thus  known  to  both  parties,  the  damages 


HAMMOND  v.  BUSSEY.  Ill 

resulting  from  the  breach  of  such  a  contract,  which  they  would 
reasonably  contemplate,  would  be  the  amount  of  injury  which 
would  ordinarily  follow  from  a  breach  of  contract  under  these 
special  circumstances  so  known  and  communicated."  I  do 
not  think  that  there  is  anything  in  those  words  to  show  that 
the  second  branch  of  the  rule  must  be  confined  to  the  case  of 
a  sub-contract  already  actually  made  at  the  time  of  the 
making  of  the  contract,  and  would  not  apply  to  the  case  of  a 
sub-contract  not  yet  actually  made,  but  which  will  probably 
be  made.  I  think  that  this  sentence  must  be  looked  upon  as 
intended  to  be  an  exemplification  of  the  second  branch  of  the 
rule  already  stated  rather  than  as  part  of  it ;  and  in  any  case 
it  seems  to  me  clear  that  the  rule  would  apply  to  the  case  of 
a  sub-contract  which  within  the  knowledge  of  the  defendant 
was  in  the  ordinary  course  of  business  sure  to  be  made.  We 
have  to  apply  that  rule  to  the  sale  and  purchase  of  such  an 
article  with  such  a  warranty  as  that  now  in  question,  with  the 
knowledge  on  the  part  of  the  vendor  that  there  would  be  a 
subsale  by  the  vendees  with  a  similar  warranty  ;  and  to  see 
whether,  under  these  circumstances,  the  bringing  of  an  action 
by  the  sub-vendees  in  the  event  of  there  being  a  breach  of  the 
warranty  by  the  vendees,  and  the  defence  of  such  action  by 
the  vendees,  are  consequences  that  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  the  parties  at  the 
time  they  made  the  contract  as  a  probable  result  of  the  breach 
of  it.  Such  a  question  is  one  upon  which  those  who  have  to 
determine  it  must  exercise  their  minds  according  to  the  cir- 
cumstances of  the  particular  case.  It  is  impossible  for  us  to 
lay  down  a  rule  as  to  what  would  be  reasonably  to  be  sup- 
posed to  have  been  in  the  contemplation  of  the  parties  in  the 
cases  of  other  contracts  made  with  regard  to  other  subject- 
matters  under  other  circumstances.  "We  can  only  apply  the 
rule  laid  down  as  above  stated  to  the  circumstances  of  the 
case  before  us.  We  must  say,  using  our  knowledge  of  busi- 
ness and  affairs,  what  may  reasonably  be  supposed  to  have 
been  in  the  contemplation  of  the  parties  as  the  result  of  a 
breach  of  the  contract  under  the  circumstances.     I  do  not 


112  CASES   ON   DAMAGES. 

think  that  the  question  is  one  for  a  jury,  though  I  think  that 
possibly,  under  certain  circumstances,  with  regard  to  some 
subject-matters,  it  would  be  competent  to  a  judge  to  ask  par- 
ticular questions  of  a  jury  in  order  to  assist  him  in  coming  to 
a  conclusion  on  such  a  question.  There  are,  however,  no 
such  circumstances  here.  I  cannot  doubt  that  any  business 
man  would  contemplate,  as  being,  according  to  the  ordinary 
course  of  things  under  the  circumstances,  not  only  the  prob- 
able but  the  inevitable  result  of  such  a  breach  of  contract, 
that  there  would  be  a  lawsuit  by  the  sub-vendees,  and  that 
the  reasonable  course  to  be  pursued  by  the  vendees  might  be 
that  they  should  not  at  once  submit  to  the  claim,  but  that, 
unless  they  could  get  information  from  the  vendor  that  there 
was  really  no  defence,  they  should  defend  the  action.  It 
would  not,  of  course,  be  the  inevitable  result  that  the  vendees 
should  lose  the  action ;  that  would  depend  on  the  question 
whether  there  was  a  breach  of  the  warrant}',  and  whether,  if 
so,  it  could  be  proved.  If,  however,  it  were  proved,  then  of 
course  the  result  would  be  that  the  vendees  must  incur  costs ; 
and  it  seems  to  me  that  such  costs  would  under  the  circum- 
stances come  within  the  second  branch  of  the  rule  in  Hadley 
v.  Baxendale. 

It  has  been  argued  that,  upon  the  true  construction  of  the 
rule  in  that  case,  such  costs  cannot  be  recoverable  as  the 
result  of  a  breach  of  contract,  unless  there  has  been  a  con- 
tract of"  indemnity."  The  meaning  of  that  term  has  been 
much  discussed  during  the  argument.  I  ma}T  in  previous 
cases,  in  which  the  question  was  as  to  the  damages  incurred 
by  reason  of  the  breach  of  a  contract,  where  there  was  a  sub- 
contract, have  used  expressions  to  the  effect  that,  where  the 
special  circumstances  were  known  to  the  original  vendor,  the 
law  would  imply  a  contract  to  indemnify.  I  do  not  feel  sure, 
having  regard  to  the  language  used  by  Willes,  J.,  in  Collen  v. 
"Wright,  8  E.  &  B.  657,  that  the  obligation  implied  by  the 
law  under  such  circumstances  as  those  with  which  we  are  now 
dealing  might  not  be  correctly  expressed  by  that  formula ; 
but  I  purposely  abstain  from  so  deciding.     I  do  not  think  it 


HAMMOND  v.  BUSSEY.  113 

necessary  to  put  the  case  on  that  footing,  inasmuch  as  the 
way  in  which  I  have  put  it,  by  applying  the  rule  in  Hadley  v. 
Baxendale,  viz.,  that  the  question  is  whether  the  damages 
claimed  may  reasonably  be  supposed  to  have  been  within  the 
contemplation  of  the  parties  at  the  time  when  they  made  the 
contract,  seems  to  be  another  and  perhaps  a  better  wa}'  of 
expressing  it.  For  the  purpose  of  substantiating  the  argu- 
ment that  there  must  be  a  contract  to  indemnify,  express  or 
implied,  in  order  to  enable  costs  such  as  these  to  be  recovered 
as  damages,  expressions  used  in  previous  cases  have  been 
referred  to.  The  language  used  by  me  in  the  case  of  Grebert- 
Borgnis  v.  Nugent,  15  Q.  B.  D.  85,  has  been  relied  upon  for 
the  defendant.  But  that  language  must  be  read  in  connec- 
tion with  the  subject-matter.  I  was  there  giving  an  account 
of  the  circumstances  of  that  case,  as  I  have  given  an  account 
of  the  circumstances  of  this  case,  and  I  used  that  language  in 
expressing  what  I  conceived  to  be  the  particular  circum- 
stances of  that  case,  which  made  the  rule  in  Hadley  v.  Baxen- 
dale applicable.  It  seems  to  me  immaterial  whether  the 
phraseology  I  used  in  so  doing  was  exactly  accurate,  for,  if 
the  circumstances  of  that  case  did  come  within  that  rule,  it 
comes  to  the  same  thing.  There  was  nothing  said  by  me  in 
that  case  which  really  adds  anything  to  or  takes  anything 
from  the  rule  enunciated  in  Hadley  v.  Baxendale  as  applicable 
to  a  case  like  the  present.  The  case  of  Birmingham,  &c. ,  Land 
Co.  v.  London  and  North-Western  Railway  Co.,  34  Ch.  D.  2G1, 
was  referred  to  for  the  same  purpose.  It  is  only  necessary  to  say 
with  regard  to  that  case  that  the  court  was  not  there  constru- 
ing the  rule  as  to  damages  laid  down  in  Hadley  v.  Baxendale, 
but  the  provisions  of  Order  xvi.,  rule  48,  with  regard  to  the 
question  whether  the  third  party  procedure  was  applicable. 
It  does  not  seem  to  me  that  such  a  case  has  any  bearing  upon 
the  present  question.  There  are  cases  which  would,  no 
doubt,  be  authorities  on  the  question  before  us  but  for  the 
fact  that  they  were  decided  prior  to  Hadley  v.  Baxendale. 
Lewis  v.  Peake,  7  Taunt.  153,- is  such  a  case,  but  I  do  not 
think  such  decisions  are  now  of  any  use.     It  seems  to  me 


114  CASES  ON  DAMAGES. 

that  the  case  of  Collen  v.  Wright,  8  E.  &  B.  647,  is  really  a 
strong  authority  with  regard  to  the  question  now  before  us, 
though  of  course  the  court  were  not  there  dealing  especially 
with  the  rule  as  to  measure  of  damages.  Then  I  come  to  the 
case  of  Baxendale  v.  London,  Chatham,  and  Dover  Ry.  Co., 
Law  Rep.  10  Ex.  35.  If  I  thought  that  that  case  had  decided 
that,  however  reasonably  it  might  be  supposed  that  the  parties 
contemplated  that  there  would  be  an  action  on  the  sub-contract 
as  a  result  of  the  breach  of  contract,  and  that  the  plaintiffs, 
acting  as  reasonable  men,  would  defend  that  action,  and  how- 
ever reasonable  the  incurring  of  the  costs  might  be,  yet  those 
costs  could  not  be  recovered  as  damages,  I  should  feel  bound 
by  that  decision,  for  it  is  a  decision  of  a  court  of  co-ordinate 
jurisdiction.  And  I  must  admit  that  I  have  felt  considerable 
anxiety  as  to  whether  the  decision  does  touch  the  point  now 
before  us.  It  is  useless  to  discuss  at  length  all  the  verbal 
criticism  which  has  been  directed  during  the  argument  to  the 
language  of  the  judgments  in  that  case.  I  must  confess  to 
feeling  some  difficulty  as  to  the  exact  effect  of  much  that  was 
said  in  those  judgments,  but  I  think  it  is  quite  clear  that 
what  the  court  did  in  effect  decide  was  that  the  costs  in  ques- 
tion were  not  reasonably  incurred  in  that  case,  and  therefore 
they  could  not  be  recovered.  The  case  therefore  decides 
that,  where  the  costs  are  unreasonably  incurred,  they  cannot 
be  recovered,  but  it  is  not,  as  it  seems  to  me,  a  decision  that, 
where  the  costs  were  under  all  the  circumstances  reasonably 
incurred,  the}'  cannot  be  recovered.  I  then  come  to  the  case 
of  Fisher  v.  Val  de  Travers  Asphalt  Co.,  1  C.  P.  D.  511.  I 
must  admit,  after  the  discussion  that  has  now  taken  place, 
that  I  doubt  whether,  when  that  case  came  before  the  court, 
I  did  quite  correctly  appreciate  what  was  decided  and  what 
was  not  in  the  case  of  Baxendale  v.  London,  Chatham,  and 
Dover  Ry.  Co.,  supi-a.  Assuming  that  I  did  not  in  that  case 
take  an  altogether  correct  view  of  the  decision  in  Baxendale 
v.  London,  Chatham,  and  Dover  Railway  Co.,  and  therefore 
gave  a  wrong  reason  for  the  decision  there,  that  could  have 
no  effect  upon  the  true  meaning  of  the  previous  decision ;  and 


WELCH   v.   ANDERSON.  115 

it  by  no  means  follows  that,  because  a  reason  given  for  the 
decision  in  Fisher  v.  Val  de  Travers  Asphalt  Co.  was 
wrong,  that  therefore  the  decision  itself  was  wrong.  It  is 
unnecessary,  however,  now  to  discuss  that  question.  It  does 
not  seem  to  me  that  there  is  really  any  case  which  alters  the 
rule  as  laid  down  in  Hadley  v.  Baxendale,  or  which  prevents 
our  applying  that  rule  in  the  terms  in  which  it  stands  in  the 
judgment  there  given  as  I  have  applied  it  to  the  present  case. 
To  my  mind  it  is  perfectly  clear  that,  according  to  a  reason- 
able business  view  of  the  reasonably  probable  course  of  busi- 
ness, the  parties  may  be  supposed  to  have  contemplated,  at 
the  time  when  the  contract  was  made,  as  the  inevitable  or  at 
any  rate  the  highly  probable  result  of  a  breach  of  it,  that 
there  would  be  a  lawsuit  between  the  plaintiffs  and  their  sub- 
vendees,  in  which  it  would  be  reasonable  for  the  plaintiffs  to 
defend,  and  in  which,  if  it  turned  out  that  there  was  a  breach 
of  the  warranty,  the  plaintiff's  would  lose,  and  that  they  would 
thereby  necessarily  incur  costs.  Costs  incurred  under  such 
circumstances  appear  to  me  to  fall  within  the  second  branch 
of  the  rule  in  Hadley  v.  Baxendale.  I  therefore  think  that 
the  plaintiffs  were  entitled  to  recover  over  from  the  defendant 
in  respect  of  their  costs,  and  that  the  decision  of  the  learned 
judge  below  was  right,  and  should  be  affirmed. 


WELCH  v.  ANDERSON. 

Court  of  Appeal,  1891.     61  L.  J.  (n.  s.)  Q.  B.  167. 

The  defendants,  shipping  brokers,  agreed  with  the  plaintiffs 
to  load  for  them  on  board  the  Hineraoa,  a  vessel  of  which 
the  defendants  were  the  charterers,  then  lying  at  a  berth  in 
the  London  docks,  100  tons  of  tiles,  which  were  to  arrive 
alongside  the  vessel  in  the  Great  Western  Railway  Company's 
trucks  from  Bridgwater.  The  tiles  were  to  be  at  the  docks 
ready  to  be  loaded  on  or  before  the  16th  of  December,  1890. 
The  plaintiffs  thereupon  caused  the  tiles  to  be  brought  from 


116  CASES  ON  DAMAGES. 

Bridgwater  to  Poplar,  the  nearest  station  to  the  docks  on  the 
Great  Western  Railway  Company's  line,  and  entered  into  a 
special  agreement  with  the  dock  company  for  haulage  of  the 
tracks  into  the  docks,  and  placing  the  goods  alongside  the 
Hinemoa  ready  to  be  loaded,  at  a  rate  of  3s.  per  ton.  The 
trucks  were  accordingly  hauled  into  the  docks,  and  the  goods 
were  ready  to  be  delivered  by  the  time  specified  by  the  de- 
fendants, namely,  the  16th  of  December.  The  defendants, 
however,  were  only  able  to  load  a  small  number  of  truck-loads 
of  the  goods  on  board  the  Hinemoa,  and  the  remainder 
of  the  goods  had  to  be  loaded  upon  another  vessel  of  the 
defendants.  In  consequence  of  the  delay  in  loading  the  goods 
the  railway  trucks  were  detained  for  a  considerable  time  at 
the  docks,  and  the  plaintiffs  were  obliged  to  pay  the  railway 
company  £42  for  demurrage.  It  appeared  from  the  table  of 
rates  of  the  London  docks  that  the  rate  for  "  wharfage  and 
porterage  "  of  "  tiles  "  coming  by  rail  was  3s.  del.  per  ton,  and 
from  the  memorandum  prefixed  to  the  table,  that  this  included 
also  warehouse  rent  for  three  weeks,  but  there  did  not  appear 
to  be  any  instance  of  a  shipment  of  tiles  in  accordance  with 
this  rate.  The  whole  of  the  goods  were  loaded  on  the  second 
vessel  within  three  weeks  from  the  16th  of  December. 

The  plaintiffs  claimed,  amongst  other  items  of  damage,  to 
recover  from  the  defendants  the  £42  (which  was  admitted  to 
be  a  reasonable  amount)  paid  to  the  railwaj-  company. 

At  the  trial  Lord  Coleridge,  C.J.,  left  it  to  the  jury  to 
say  whether  the  demurrage  was  the  reasonable  and  normal 
consequence  of  the  defendants'  breach  of  contract.  The  jury 
found  a  verdict  for  the  plaintiffs,  and  judgment  was  given 
accord ingl}'.     The  defendants  appealed. 

Lord  Esiier,  M.R.  I  am  of  opinion  that  this  appeal  must 
be  dismissed,  and  that  the  judgment  entered  for  the  plaintiffs 
must  stand.  The  argument  put  forward  on  behalf  of  the 
defendants  is,  as  it  seems  to  me,  an  attempt  to  invent  a  doc- 
trine which  is  not  the  doctrine  laid  down  in  Hadle}'  v .  Baxen- 
dale ;  or,  rather,  is  an  attempt  to  invert  the  application  of 
the  rule  there  laid  down.     In  the  present  case  the  contract 


WELCH  v.  ANDERSON.  117 

entered  into  by  the  defendants  was  to  have  their  ship  read}'  to 
load  by  the  16th  of  December,  on  which  day  the  plaintiffs  were 
to  have  their  goods  alongside  ready  to  put  on  board.  That 
contract  the  defendants  broke  ;  the  ship  was  at  the  berth,  but 
was  not  ready  to  load,  whereas  it  was  the  duty  of  the  defend- 
ants to  have  their  ship  in  such  a  condition  that,  if  the  tiles  were 
brought  alongside,  the  loading  might  proceed.  That  being  so, 
the  only  question  to  be  determined  is,  what  is  the  proper  rule 
as  to  the  measure  of  damages?  It  seems  to  me  that  here  the 
demurrage  of  the  trucks  by  which  the  tiles  were  brought  along- 
side the  ship  was  the  natural,  reasonable,  and  ordinary  conse- 
quence of  the  defendants'  breach  of  contract.  A  shipowner 
must  know  that  such  goods  as  tiles  cannot  reasonably  and  in 
ordinary  business  be  brought  alongside  his  ship  to  be  loaded 
except  in  vehicles,  by  which  I  mean,  in  barges,  or  in  railway 
trucks,  or  carts.  Physically,  of  course,  they  might  be  brought 
on  men's  shoulders,  but  that  is  not  the  ordinary  business  wa}". 
Now  if,  instead  of  being  brought  alongside  by  land,  the  tiles 
had  in  the  present  case  been  brought  in  barges,  and  the  ship 
had  not  been  ready  to  take  them  on  board,  the  shipowner 
must  have  known  that  demurrage  would  have  to  be  paid  on 
the  barges.  If  the  goods  had  been  brought  in  carts,  it  seems 
to  me  that  it  would  equally  be  the  ordinary  and  natural  result 
of  the  ship  not  being  ready  to  load  them  that  the  goods  would 
have  to  be  kept  in  the  carts.  Why  should  they  be  taken  out  of 
the  carts  and  placed  on  the  quay  ?  The  natural  result  would 
be  that  the  carts  would  be  detained.  It  would,  of  course,  be 
exactly  the  same  if  the  goods  came  b}'  railway.  It  seems  to 
me,  therefore,  in  this  case  that  the  ordinary  and  natural  re- 
sult of  a  breach  of  the  contract  entered  into  by  the  defendants 
would  be  that  the  trucks  in  which  the  goods  to  be  loaded  were 
brought  alongside  would  be  detained,  and  that  the  shippers 
would  have  to  pay.  If  that  would  be  the  natural  and  ordi- 
nary result  of  the  defendants'  breach  of  contract,  we  have 
nothing  to  do  with  the  second  part  of  the  rule  in  Hadley  v. 
Baxendale,  which  applies  only  where  the  damages  are  not  the 
natural  and  ordinary  result,  in  which  case  the}7  are,  according 


118  CASES  ON  DAMAGES. 

to  Hadley  v.  Baxendale,  not  recoverable  unless  the  party 
seeking  to  recover  them  can  show  that  they  ma}'  reasonably 
be  supposed  to  have  been  in  the  contemplation  of  both  parties 
at  the  time  the  contract  was  made  as  the  probable  result  of 
the  breach  of  it  —  that  part  of  the  rule  is,  as  I  have  said,  not 
brought  into  play  if  the  damages  sought  to  be  recovered  are 
damages  which  are  the  natural  and  ordinary  result  of  the 
breach  of  contract,  and  therefore  does  not  apply  to  the  pres- 
ent case,  where  those  are  the  only  damages  which  the  plain- 
tiffs are  claiming.  The  natural  result  of  the  defendants' 
breach  of  their  contract  was  that  the  plaintiffs  had  to  pay 
demurrage,  and  that  is  the  damages  the}"  now  ask  for. 

But  the  defendants  contend  that  in  the  present  case  there 
is  a  peculiar  state  of  things  which  alters  the  ordinary  rule. 
"  If,"  sa}-  they,  "you,  the  plaintiffs,  had  paid  the  usual  rate 
charged  b}r  the  dock  company,  you  could  have  put  the  goods 
in  sheds  and  kept  them  there  for  three  weeks  free  of  charge, 
and  if  that  had  been  done  you  would  have  had  no  demurrage 
to  pay,  and  would  have  suffered  no  damage ;  if  you  had  fol- 
lowed the  ordinary  course  of  business,  you  would  have  paid 
that  rate,  and  though  we  do  not  say  that  you  were  bound. to 
follow  that  course,  still,  if  you  intended  to  go  out  of  that 
ordinary  course  of  business,  j'ou  ought  to  have  given  us  notice 
of  the  fact."  That  contention  appears  to  me  to  be  an  attempt 
to  apply,  not  as  against  a  plaintiff  who  is  claiming  damages 
greater  than  those  which  would  be  the  natural  result  of  a 
breach  of  contract,  but  as  against  a  plaintiff  who  is  claiming 
only  such  damages  as  are  the  natural  result  of  the  defendants' 
breach  of  contract,  a  kind  of  rule  like  the  second  part  of  the 
rule  in  Hadley  v.  Baxendale.  I  meet  the  contention  at  once 
by  saying  that  the  defendants  had  no  right  to  suppose  that 
the  plaintiffs  would  carry  on  their  business  in  any  particular 
way.  The  plaintiffs  had  a  right  to  have  their  goods  carried 
alongside  the  ship  and  kept  there  in  any  reasonable  way  they 
might  think  fit,  and  the  defendants  had  no  right  to  expect 
that  they  would  do  so  in  an}r  particular  way  ;  and,  therefore, 
have  no  right  to  say  that  if  the  plaintiffs  did  not  arrange  to 


McHOSE   v.  FULMER.  119 

have  their  goods  brought  alongside  in  the  accustomed  way, 
the}"  were  bound  to  inform  the  defendants.  In  my  opinion, 
the  Lord  Chief  Justice  might  have  ruled  that  this  was  an 
undefended  action,  and  that  the  only  question  for  the  jury  was 
as  to  the  amount  of  the  damages.  The  defendants  certainly 
cannot  complain  because,  instead  of  doing  that,  he  left  the 
whole  matter  to  the  jury.  For  the  reasons  I  have  given,  I 
think  that  the  judgment  must  stand,  and  that  the  appeal  must 
be  dismissed. 


[McHOSE  v.  FULMER. 

Pennsylvania,  1873.     73  Pa.  365. 

Sharswood,  J.1  When  a  vendor  fails  to  comply  with  his 
contract,  the  general  rule  for  the  measure  of  damages  un- 
doubtedly is,  the  difference  between  the  contract  and  the 
market  price  of  the  article  at  the  time  of  the  breach.  This 
is  for  the  evident  reason  that  the  vendee  can  go  into  the  mar- 
ket and  obtain  the  article  contracted  for  at  that  price.  But 
when  the  circumstances  of  the  case  are  such  that  the  vendee 
cannot  thus  supply  himself,  the  rule  does  not  apply,  for  the 
reason  of  it  ceases  :  Bank  of  Montgomery  v.  Reese,  2  Casey, 
143.  "  It  is  manifest,"  says  Mr.  Chief  Justice  Lewis,  "  that 
this  (the  ordinary  measure)  would  not  remunerate  him  when 
the  article  could  not  be  obtained  elsewhere."  If  an  article  of 
the  same  quality  cannot  be  procured  in  the  market,  its  market 
price  cannot  be  ascertained,  and  we  are  without  the  necessary 
data  for  the  application  of  the  general  rule.     This  is  a  con- 

1  In  this  case  the  defendant  was  sued  on  a  note  given  in  payment  for 
iron:  he  set  up  a  defence  (by  way  of  recoupment)  that  part  of  the  iron 
called  for  by  his  contract  with  plaintiff  had  not  been  delivered,  and  that 
"b}'  the  neglect  and  refusal  of  plaintiffs  to  furnish  said  iron,  defendants 
were  obliged  to  get  an  inferior  quality  of  iron  than  that  which  plain- 
tiffs were  to  furnish,  in  order  to  carry  on  the  business  of  said  mill, 
and  being  inferior  they  lost  the  contract  with  the  parties  with  whom 
they  had  contracted  for  the  sale  and  deliverv  of  iron." 


120  CASES  ON  DAMAGES. 

tingency  which  must  be  considered  to  have  been  within  the 
contemplation  of  the  parties,  for  they  must  be  presumed  to 
know  whether  such  articles  are  of  limited  production  or  not. 
In  such  a  case  the  true  measure  is  the  actual  loss  which  the 
vendee  sustains  in  his  own  manufacture,  by  having  to  use  an 
inferior  article  or  not  receiving  the  advance  on  his  contract 
price  upon  any  contracts  which  he  had  himself  made  in  reli- 
ance upon  the  fulfilment  of  the  contract  by  the  vendor.  We 
do  not  mean  to  say,  that  if  he  undertakes  to  fill  his  own  con- 
tracts with  an  inferior  article,  and  in  consequence  such  article 
is  returned  on  his  hands,  he  can  recover  of  his  vendor,  besides 
the  loss  sustained  on  his  contracts,  all  the  extraordinary  loss 
incurred  b}7  his  attempting  what  was  clearly  an  unwarrantable 
experiment.  His  legitimate  loss  is  the  difference  between  the 
contract  price  he  was  to  pay  to  his  vendor  and  the  price  he 
was  to  receive.  This  is  a  loss  which  springs  directly  from  the 
non-fulfilment  of  the  contract.  The  affidavits  of  defence  are  not 
as  full  and  precise  upon  this  point  as  they  might  and  ought  to 
have  been,  but  they  state  that  the  defendants  below  had  entered 
into  such  contracts,  and  that  the}'  were  unable  to  get  the  same 
quality  of  iron  which  the  plaintiff  had  agreed  to  deliver,  and 
this,  we  think,  was  enough  to  have  carried  the  case  to  a 
jury.  Judgment  reversed,  and  a  procedendo  awarded. 


CASE  v.  STEVENS. 

Massachusetts,  1884.     137  Mass.  551. 

W.  Allen,  J.  This  is  an  action  of  tort  for  a  breach  of  a 
warranty  that  a  horse  sold  by  the  defendants  to  the  plaintiff 
was  kind.  It  is  alleged  that  the  defendants  knew  that  the 
warranty  was  false.  The  onby  damage  alleged  is  for  the 
breaking  of  the  plaintiff's  wagon  and  harness  in  consequence 
of  the  unkindness  of  the  horse  ;  and  the  plaintiff  claimed  no 
other  damages  in  the  court  below.  The  court  ruled  that  such 
damages  could  not  be  recovered  upon  the  facts  alleged ;  and 
the  only  question  is  upon  the  correctness  of  that  ruling. 


MATHER   v.   AMERICAN  EXPRESS   CO.  121 

The  ruling  was  correct.  The  warranty  related  only  to  the 
value  of  the  horse,  and  there  is  nothing  in  the  declaration  to 
show  that  it  was  given  or  received  in  view  of  anything  else. 
The  only  damage  in  consequence  of  the  breach  of  it,  which  is 
brought  within  the  contemplation  of  the  parties,  is  the  diminu- 
tion in  value  of  the  property  warranted.  The  declaration 
contains  no  allegations  which  bring  it  within  the  principle  of 
Allen  y.  Truesdell,  135  Mass.  75,  and  other  cases  of  false 
representations  or  warranties  of  fitness  for  particular  uses 
contemplated  by  the  parties. 

Exceptions  overruled. 


MATHER  v.  AMERICAN   EXPRESS   CO. 

Massachusetts,  1884.     138  Mass.  55. 

Contract  for  the  loss  of  a  package  containing  a  part  of  a 
set  of  plans  for  a  house,  delivered  by  the  plaintiff  to  the 
defendant  for  transportation  from  Northampton  to  Boston.1 

Field,  J.  It  is  not  denied  that  the  defendant  is  liable 
in  damages  for  the  reasonable  cost  of  the  new  plans,  and 
for  other  expenses,  if  there  were  any  reasonably  incurred 
in  procuring  the  new  plans ;  but  it  is  denied  that  the 
defendant  is  liable  in  damages  for  the  delay  in  construct- 
ing the  house  occasioned  by  the  loss  of  the  plans.  It  is 
assumed  that  the  plans  had  no  market  value,  and  were  only 
useful  to  the  plaintiff.  The  rule  of  damages,  then,  is  their 
value  to  the  plaintiff.  As  new  plans  could  not  be  bought  in 
the  market  ready  made,  some  time  necessarily  must  be  con- 
sumed in  making  them,  and  the  plaintiff  contends  that  the 
value  of  the  plans  for  immediate  use,  or  for  use  at  the  time 
he  would  have  received  them  from  Boston,  if  the  defendant 
had  duly  performed  its  contract,  is  their  value  to  him,  and  that 
this  value  is  made  up  of  the  cost  of  procuring  the  new  plans 
and  the  damages  occasioned  by  the  delay.     Whatever  he  calls 

1  The  statement  of  facts  is  omitted. 


122  CASES  ON  DAMAGES. 

it,  it  is  damages  for  the  dela}'  in  constructing  the  house 
caused  by  the  loss  of  the  original  plans  that  he  seeks  to 
recover.  It  does  not  appear  that  the  defendant  had  notice 
of  the  contents  of  the  package  at  the  time  it  was  delivered 
for  transportation,  or  any  notice  or  knowledge  that  the  plain- 
tiff needed  the  plans  for  the  construction  of  a  house  which  he 
had  begun  to  build.  The  damages  caused  by  the  delay  are 
not  such  as  usually  and  naturally  arise  solel}'  from  a  breach 
of  the  contract  of  the  defendant  to  cany  the  package  safely 
to  its  destination,  nor  were  they  within  the  reasonable  contem- 
plation of  both  parties  to  this  contract,  as  likely  to  arise  from 
such  a  breach.  The  fact  that  the  plans  had  a  special  value 
to  the  plaintiff,  and  could  not  be  purchased,  does  not  touch 
the  question  of  including  in  the  damages  the  injury  to  the 
plaintiff  occasioned  by  reason  of  other  contracts  which  he  had 
made,  and  of  work  which  he  had  undertaken  in  expectation 
of  having  the  plans  for  use  immediately,  or  after  the  usual 
delay  involved  in  sending  the  plans  to  Boston,  and  in  having 
them  traced  and  returned  to  him.  Damages  for  such  injurjT  are 
not  given  unless  the  circumstances  are  such  as  to  show  that 
the  defendant  ought  fairly  to  be  held  to  have  assumed  a  lia- 
bility* therefor  when  it  made  the  contract. 

We  think  that  Hadley  v.  Baxendale,  9  Exch.  341,  which 
has  been  cited  with  approval  by  this  court,  governs  this  case. 

The  case  of  Green  v.  Boston  &  Lowell  Railroad,  128  Mass. 
221,  on  which  the  plaintiff  relies,  was  an  action  to  recover 
the  value  of  an  "  oil  painting,  the  portrait  of  the  plaintiff's 
father."  The  opinion  attempts  to  lay*  down  a  rule  for  deter- 
mining the  value  of  such  a  painting,  when  the  plaintiff  had  no 
other  portrait  of  his  father,  and  when,  so  far  as  appears,  it 
had  no  market  value ;  but  the  opinion  does  not  discuss  any 
question  of  damages  not  involved  in  determining  the  value  of 
the  portrait  to  the  plaintiff.  The  plaintiff  in  that  case  made 
no  claim  for  damages  occasioned  by  a  loss  of  a  profitable  use 
of  the  portrait.  Exceptions  sustained. 


LYNN  GAS  &  ELECTRIC   CO.  v.  MERIDEN  F.  INS.  CO.      123 


LYNN  GAS  AND  ELECTRIC  CO.  v.  MERIDEN  FIRE 
INSURANCE  CO. 

Massachusetts,  1893.     158  Mass.  570. 

Contract  against  several  insurance  companies  upon  con- 
current policies  of  the  Massachusetts  standard  form,  insuring 
the  building  and  machinery  of  the  plaintiff  against  loss  or 
damage  by  fire.1 

Knowlton,  J.  The  only  exception  relied  on  by  the  defend- 
ants in  these  cases  is  that  relating  to  the  claim  for  damage  to 
the  machinery  used  in  generating  electricity  and  to  the  build- 
ing from  a  disruption  of  the  machinery.  This  machinery  was 
in  a  part  of  the  building  remote  from  the  fire,  and  none  of  it 
was  burned.  In  his  charge  to  the  jury  the  judge  stated  the 
theory  of  the  plaintiff  as  follows:  "The  plaintiff  says  the 
position  of  the  lightning  arresters  in  the  vicinity  of  the  fire 
■was  such  that  by  reason  of  the  fire  in  the  tower  a  connection 
was  made  between  them  called  a  short  circuit ;  that  the  short 
circuit  resulted  in  keeping  back  or  in  bringing  into  the  dynamo 
below  an  increase  of  electric  current  that  made  it  more  difficult 
for  this  armature  to  revolve  than  before,  and  caused  a  higher 
power  to  be  exerted  upon  it,  or  at  least  caused  greater  resist- 
ance to  the  machinery  ;  that  this  resistance  was  transmitted 
to  the  pulley  by  which  this  armature  was  run,  through  the 
belt ;  that  that  shock  destroyed  that  pulley ;  that  by  the 
destruction  of  that  pulley  the  main  shaft  was  disturbed,  and 
the  succeeding  pulleys  up  to  the  jack-pulley  were  ruptured  ; 
that  by  reason  of  pieces  flying  from  the  jack-pulley,  or  from 
some  other  cause,  the  fly-wheel  of  the  engine  was  destroyed, 
the  governor  broken,  and  everything  crushed  ;  —  in  a  word, 
that  the  short  circuit  in  the  tower  by  reason  of  the  fire  caused 
an  extra  strain  upon  the  belt  through  the  action  of  electricit}*, 
and  that  caused  the  damage."  The  plaintiff  contended  that 
1  The  statement  of  facts  is  omitted. 


124  CASES  ON  DAMAGES. 

the  short  circuit  was  produced  by  the  fire,  either  by  means 
of  heat  on  the  horns  of  the  lightning  arresters,  or  by  a  flame 
acting  as  a  conductor  between  the  two  horns,  or  in  some  other 
way.  The  jury  found  that  the  plaintiffs  theory  of  the  cause 
of  the  damage  was  correct,  and  the  question  is  whether  the 
judge  was  right  in  ruling  that  an  injury  to  the  machinery 
caused  in  this  way  was  a  "  loss  or  damage  bjT  fire,"  witbin 
the  meaning  of  the  policy. 

The  subject  matter  of  the  insurance  was  the  building,  ma- 
chinery, dynamos,  and  other  electrical  fixtures,  besides  tools, 
furniture,  and  supplies  used  in  the  business  of  furnishing  elec- 
tricity for  electric  lighting.  The  defendants,  when  they  made 
their  contracts,  understood  that  the  building  contained  a  large 
quantity  of  electrical  machinery,  and  that  electricity  would  be 
transmitted  from  the  dynamos,  and  would  be  a  powerful  force 
in  and  about  the  building.  The}'  must  be  presumed  to  have 
contemplated  such  effects  as  fire  might  naturally  produce  in 
connection  with  machinery  used  in  generating  and  transmitting 
strong  currents  of  electricity. 

The  subject  involves  a  consideration  of  the  causes  to  which 
an  effect  should  be  ascribed  when  several  conditions,  agencies, 
or  authors  contribute  to  produce  an  effect.  The  defendants 
contend  that  the  application  of  the  principle  which  is  ex- 
pressed by  the  maxim,  Injure  non  remota  causa  sed  proximo, 
spectatur,  relieves  them  from  liability  in  these  cases.  It  has 
often  been  necessary  to  determine,  in  trials  in  court,  what  is 
to  be  deemed  the  responsible  cause  which  furnishes  a  founda- 
tion for  a  claim  when  several  agencies  and  conditions  have  a 
share  in  causing  damage,  and  the  best  rule  that  can  be  formu- 
lated is  often  difficult  of  application.  When  it  is  said  that 
the  cause  to  be  sought  is  the  direct  and  proximate  cause,  it  is 
not  meant  that  the  cause  or  agency  which  is  nearest  in  time 
or  place  to  the  result  is  necessarily  to  be  chosen.  Freeman  v. 
Mercantile  Accident  Association,  156  Mass.  351.  The  active 
efficient  cause  that  sets  in  motion  a  train  of  events  which  brings 
about  a  result  without  the  intervention  of  any  force  started 
and  working  actively  from  a  new  and  independent  source 


LYNN  GAS  &  ELECTRIC  CO.  v.   MERIDEN  F.  INS.  CO.   125 

is  the  direct  and  proximate  cause  referred  to  in  the  cases. 
McDonald  v.  Snelling,  14  Allen,  200.  Perley  v  Eastern 
Railroad,  98  Mass.  414,  419.  Gibney  v.  State,  137  N.  Y. 
529.  In  Milwaukee  &  St.  Paul  Railway  v.  Kellogg,  94 
U.  S.  469,  474,  Mr.  Justice  Strong,  who  also  wrote  the 
opinions  in  Insurance  Co.  v.  Transportation  Co.,  12  Wall. 
194,  and  in  Western  Massachusetts  Ins.  Co.  v.  Transportation 
Co.,  12  Wall.  201,  which  are  much  relied  on  by  the  defend- 
ants, used  the  following  language  in  the  opinion  of  the  court : 
"The  primary  cause  may  be  the  proximate  cause  of  a  disaster, 
though  it  inay  operate  through  successive  instruments,  as  an 
article  at  the  end  of  a  chain  may  be  moved  by  a  force  applied 
to  the  other  end,  that  force  being  the  proximate  cause  of  the 
movement,  or  as  in  the  oft  cited  case  of  the  squib  thrown  in  the 
market-plac.e.  2  Bl.  Rep.  892.  The  question  always  is,  Was 
there  an  unbroken  connection  between  the  wrongful  act  and 
the  injury,  a  continuous  operation?  Did  the  facts  constitute 
a  continuous  succession  of  events,  so  linked  together  as  to 
make  a  natural  whole,  or  was  there  some  new  and  independent 
cause  intervening  between  the  wrong  and  the  injury?" 

If  this  were  an  action  against  one  who  negligently  set  the 
fire  in  the  tower,  and  thus  caused  the  injury  to  the  machinery, 
it  is  clear,  on  the  theory  of  the  plaintiff  that  the  negligent  act 
of  setting  the  fire  would  be  deemed  the  active  efficient  cause 
of  the  disruption  of  the  machinery  and  the  consequent  injury 
to  the  building.  It  remains  to  inquire  whether  there  is  a 
different  rule  in  an  action  on  a  policy  of  fire  insurance. 

Under  our  statute  creating  a  liability  for  damages  received 
from  defects  in  highways,  it  is  held  that  the  general  rule  is  so 
far  modified  that  there  can  be  no  recover}'  unless  the  defect 
is  the  sole  cause  of  the  accident ;  but  this  doctrine  rests  on  the 
construction  of  the  statute.  Tisdale  v.  Norton,  8  Met.  388. 
Marble  v.  Worcester,  4  Gray,  395.  Jenks  v.  Wilbraham,  11 
Gray,  142.  McDonald  v.  Snelling,  14  Allen,  290.  Babson  v. 
Rockport,  101  Mass.  93. 

In  suits  brought  on  policies  of  fire  insurance,  it  is  held  that 
the   intention  of  the   defendants  must  have  been  to  insure 


126  CASES  ON  DAMAGES. 

against  losses  where  the  cause  insured  against  was  a  means 
or  agency  in  causing  the  loss,  even  though  it  was  entirely 
due  to  some  other  active,  efficient  cause  which  made  use  of  it, 
or  set  it  in  motion,  if  the  original  efficient  cause  was  not  itself 
made  a  subject  of  separate  insurance  in  the  contract  between 
the  parties.     For  instance,  where  the  negligent  act  of  the 
insured,  or  of  anybody  else,  causes  a  fire,   and  so  causes 
damage,  although  the  negligent  act  is  the  direct,  proximate 
cause  of  the  damage,  through  the  fire,  which  was  the  passive 
agency,  the  insurer  is  held  liable  for  a  loss  caused  by  the  fire. 
Johnson  v.  Berkshire   Ins.   Co.,   4   Allen,  388.     Walker  v. 
Maitland,  5  B.  &  Aid.  171.     Waters  v.  Merchants'  Louisville 
Ins.  Co.,  11  Pet.  213.    Peters  v.  Warren  Ins.  Co.,  14  Pet.  99. 
General  Ins.  Co.  v.  Sherwood,  14  How.  351.     Insurance  Co. 
v.  Tweed,  7  Wall.  44.     This  is  the  only  particular  in  which 
the  rule  in  regard  to  remote  and  proximate  causes  is  applied 
differently  in  actions  on  fire  insurance  policies  from  the  applica- 
tion of  it  in  other  actions.     A  failure  sometimes  to  recognize 
this  rule  as  standing  on  independent  grounds,  and  established 
to  carry  out  the  intention  of  the  parties  to  contracts  of  insur- 
ance, has  led  to  confusion  of  statement  in  some  of  the  cases. 
The  difficulty  in  applying  the  general  rule  in  complicated  cases 
has  made  the  interpretation  of  some  of  the  decisions  doubtful ; 
but  on  principle,  and  by  the  weight  of  authority  in  many  well- 
considered  cases,  we  think  it  clear  that,  apart  from  the  single 
exception  above  stated,  the  question,  What  is  a  cause  which 
creates  a  liability  ?  is  to  be  determined  in  the  same  way  in 
actions  on   policies   of  fire   insurance  as  in  other   actions. 
Scripture  v.  Lowell  Ins.  Co.,  10  Cush.  356.     New  York   & 
Boston  Despatch  Express  Co.  v.  Traders  &  Mechanics'  Ins. 
Co.,  132  Mass.  377.     St.  John  v.  American  Ins.  Co.,  1  Ker- 
nan,  516.     General   Ins.   Co.  v.   Sherwood,    14   How.  351. 
Insurance  Co.  v.  Tweed,  7  Wall.  44.     Waters  v.  Merchants' 
Louisville  Ins.  Co.,  11  Pet.  213,  225.     Livie  v.  Janson,  12 
East,  G48.    Ionides  v.  Universal  Ins.  Co.,  14  C.  B.  (n.  s.)  259. 
Transatlantic  Ins.  Co.  v.  Dorsey,  56  Md.   70.     United  Ins. 
Co.  v.  Foote,  22  Ohio  St.  340. 


DENNY  v.  NEW  YOEK   CENTRAL   RAILROAD.       127 

In  the  present  case,  the  electricity  was  one  of  the  forces  of 
nature,  —  a  passive  agent  working  under  natural  laws, — 
whose  existence  was  known  when  the  insurance  policies  were 
issued.  Upon  the  theory  adopted  by  the  jury,  the  fire 
worked  through  agencies  in  the  building,  the  atmosphere, 
the  metallic  machinery,  electricity,  and  other  things  ;  and 
working  precisely  as  the  defendants  would  have  expected  it 
to  work  if  they  had  thoroughly  understood  the  situation  and 
the  laws  applicable  to  the  existing  conditions,  it  put  a  great 
strain  on  the  machinery  and  did  great  damage.  No  new  cause 
acting  from  an  independent  source  intervened.  The  fire  was 
the  direct  and  proximate  cause  of  the  damage  according  to 
the  meaning  of  the  words  "direct  and  proximate  cause,"  as 
interpreted  by  the  best  authorities.  The  instructions  to  the 
jury  were  full,  clear,  and  correct,  and  the  defendants'  requests 
for  instructions  were  rightly  refused. 

Exceptions  overruled. 


DENNY  v.  NEW  YORK  CENTRAL  RAILROAD. 

Massachusetts,  1859.     13  Gray,  4S1. 

Merrick,  J.  This  action  is  brought  to  recover  compensa- 
tion for  damages  alleged  to  have  been  sustained  by  the 
plaintiff  in  consequence  of  an  injury  to  a  quantity  of  his 
wool  delivered  to  the  defendants  to  be  transported  for  him 
from  Suspension  Bridge  to  Albany.  It  appears  from  the 
report  that  the  wool,  directed  to  Boston,  was  received  by 
them  at  the  former,  and  carried  to  the  latter  place,  and  was 
there  safely  deposited  in  their  freight  depot.  But  it  was  not 
transported  seasonably  nor  with  reasonable  despatch.  By 
their  failure  to  exercise  the  degree  of  care  and  diligence 
required  of  them  by  law,  it  was  detained  six  days  at  Syra- 
cuse, and  consequently  arrived  at  Albany  so  many  days 
later  than  it  should  regularly  have  been  there.  Whilst  it 
was  lying  in  the  defendant's  freight  depot  in  that  city,  it 


128  CASES  ON  DAMAGES. 

was  submerged  by  a  sudden  and  violent  flood  in  the  Hudson 
River.  This  rise  of  the  water  caused  the  alleged  injury  to 
the  wool. 

Upon  the  evidence  adduced  by  the  parties  at  the  trial, 
three  questions  of  fact  were  submitted  to  the  determination 
of  the  jury.  It  is  necessary  now  to  advert  only  to  the  first 
of  those  questions ;  for  the  finding  of  the  jury  in  relation  to 
the  second  was  in  favor  of  the  defendants,  and  the  verdict  in 
relation  to  the  third  has  on  their  motion  been  alreadj'  set 
aside  as  having  been  rendered  against  the  weight  of  evidence 
in  the  case. 

In  looking  at  the  terms  and  language  in  which  the  action 
of  the  jury  in  reference  to  the  first  of  these  questions  is 
expressed,  it  would  perhaps,  at  first  sight,  seem  that  they 
had  passed  upon  and  determined  the  precise  point  in  issue 
between  the  parties,  namely,  whether  the  wool  was  injured 
by  reason  of  an  omission  on  the  part  of  the  defendants  to 
exercise  the  care  and  diligence  in  the  transportation  of  the 
wool,  which  the  law  required  of  them  as  common  carriers. 
If  this  were  so,  it  would  have  been  a  final  and  conclusive 
determination.  But  upon  a  closer  scrutin}r  of  the  statements 
in  the  report,  it  appears  that  the  juiy,  by  their  answer  to  the 
question  submitted  to  them,  intended  only  to  affirm,  that  the 
defendants  failed  to  exercise  due  care  and  diligence  in 
the  prompt  and  seasonable  transportation  of  the  wool,  and 
that  by  reason  of  this  failure  and  the  consequent  detention 
of  the  wool  at  Syracuse,  it  was  injured  by  the  rise  of  water  in 
the  Hudson,  and  thereby  sustained  damage  to  which  it  would 
not  have  been  exposed  if  it  had  arrived  at  Albany  as  soon  as 
it  should  have  done,  because  in  that  event  it  would  have  been 
taken  away  from  the  defendants'  freight  depot,  and  carried 
forward  to  Boston  before  the  occurrence  of  the  flood.  And 
it  was  upon  this  ground  that  the  verdict  was  rendered  for  the 
plaintiff.  This  was  so  considered  by  both  parties  in  their 
arguments  upon  the  questions  of  law  arising  upon  the  report. 

It  is  therefore  now  to  be  determined  by  the  court,  whether 
the  defendants  are,  by  reason  and  in  consequence  of  their 


DENNY  v.  NEW  YORK   CENTRAL  RAILROAD.       129 

negligence  in  the  prompt  and  seasonable  transportation  of 
the  wool,  responsible  for  the  injury  which  it  sustained  after 
it  was  safely  deposited  in  their  depot  at  Albany.  And  we 
think  it  is  very  plain  that,  upon  the  well-settled  principles  of 
law  applicable  to  the  subject,  they  are  not. 

It  is  said  to  be  an  ancient  and  universal  rule  resting  upon 
obvious  reason  and  justice,  that  a  wrongdoer  shall  be  held 
responsible  only  for  the  proximate  and  not  for  the  remote 
consequences  of  his  actions.  2  Parsons  on  Con.  456.  The 
rule  is  not  limited  to  cases  in  which  special  damages  arise ; 
but  is  applicable  to  every  case  in  which  damage  results  from 
a  contract  violated  or  an  injurious  act  committed.  2  Greenl. 
Ev.  §  256.  2  Parsons  on  Con.  457.  And  the  liabilities  of 
common  carriers,  like  persons  in  other  occupations  and  pur- 
suits, are  regulated  and  governed  by  it.  Story  on  Bailments, 
586.  Angell  on  Carriers,  201.  Morrison  v.  Davis,  20  Penn. 
State  R.  171. 

In  the  last-named  case,  it  is  said  that  there  is  nothing  in 
the  policy  of  the  law  relating  to  common  carriers,  that  calls 
for  an}'  different  rule,  as  to  consequential  damages,  to  be 
applied  to  them.  In  that  case  ma}r  be  found  not  onty  a 
clear  and  satisfactory  statement  of  the  law  upon  the  subject, 
but  a  significant  illustration  of  the  rule  which  the  decision 
recognizes  and  affirms.  It  was  an  action  against  the  defend- 
ants, as  common  carriers  upon  the  Pennsylvania  Canal.  It 
appeared  that  their  canal  boat,  in  which  the  plaintiff's  goods 
were  carried,  was  wrecked  below  Piper's  Dam,  by  reason  of 
an  extraordinary  flood  ;  that  the  boat  started  on  its  voyage 
with  a  lame  horse,  and  by  reason  thereof  great  delay  was 
occasioned  in  the  transportation  of  the  goods  ;  and  that,  had 
it  not  been  for  this,  the  boat  would  have  passed  the  point 
where  the  accident  occurred,  before  the  flood  came,  and 
would  have  arrived  in  time  and  safet}'  at  its  destination. 
The  plaintiff  insisted  that,  inasmuch  as  the  negligence  of 
the  defendants  in  using  a  lame  horse  for  the  voyage  occa- 
sioned the  loss,  they  were  therefore  liable  for  it.  But  the 
court,  assuming  that  the  flood  was  the  proximate   cause  of 


130  CASES   ON  DAMAGES. 

the  disaster,  held,  that  the  lameness  of  the  horse,  by  reason 
of  which  the  boat,  in  consequence  of  his  inability  thereby  to 
carry  it  forward  with  the  usual  and  ordinary  speed,  was 
exposed  to  the  influence  and  dangers  of  the  flood,  was  too 
remote  to  make  the  defendants  responsible  for  the  goods 
which  were  lost  in  the  wreck.  It  was  only,  in  connection 
with  other  incidents,  a  cause  of  the  final,  direct,  and  proxi- 
mate cause  by  which  the  damages  sought  to  be  recovered 
were   immediately  occasioned. 

There  is  so  great  a  resemblance  between  the  circumstances 
upon  which  the  determination  in  that  case  was  made,  and 
those  upon  which  the  question  under  consideration  in  this 
arises,  that  the  decision  in  both  ought  to  be  the  same.  In 
this  case  the  defendants  failed  to  exercise  due  care  and 
diligence,  in  not  being  possessed  of  a  sufficient  number  of 
efficient  working  engines  to  transport  the  plaintiffs  wool 
with  the  usual  ordinary  and  reasonable  speed.  The  con- 
sequence of  this  failure  on  their  part  was  that  the  wool  was 
detained  six  days  at  Syracuse.  This  was  the  full  and  entire 
effect  of  their  negligence,  and  for  this  they  are  clearly 
responsible.  But  in  all  that  occurred  afterwards  there  was 
no  failure  in  the  performance  of  their  duty.  There  was  no 
delay  and  no  negligence  in  any  part  of  the  transportation 
between  Syracuse  and  Albany,  and  upon  reaching  the  latter 
place  the  wool  was  safely  and  properly  stored  in  their  freight 
depot.  It  was  their  duty  to  make  this  disposition  of  it. 
They  had  then  reached  the  terminus  of  their  road;  the 
carriage  of  the  goods  was  then  complete  ;  and  the  duty  only 
remained  of  making  delivery.  The  deposit  of  the  wool  in  the 
depot  was  the  only  delivery  which  they  were  required  to 
make ;  and  having  made  that,  their  liabilities  as  carriers 
thenceforward  ceased.  It  was  there  to  be  received  by  the 
owner,  or  taken  up  by  the  proprietors  of  the  railroad  next  in 
course  of  the  route  to  Boston.  Norway  Plains  Co.  v.  Boston 
&  Maine  Railroad,  1  Gray,  263.  Nutting  v.  Connecticut 
River  Railroad,  1  Gray,  502.  The  rise  of  waters  in  the 
Hudson,  which  did  the  mischief  to  the  wool,  occurred  at  a 


FOX  v.  BOSTON  AND   MAINE   RAILROAD.  131 

period  subsequent  to  this,  and  consequently  was  the  direct 
and  proximate  cause  to  which  that  mischief  is  to  be  attrib- 
uted. The  negligence  of  the  defendants  was  remote  ;  it 
had  ceased  to  operate  as  an  active,  efficient,  and  prevailing 
cause  as  soon  as  the  wool  had  been  carried  on  beyond  Syra- 
cuse, and  cannot  therefore  subject  them  to  responsibilitj'  for 
an  injury  to  the  plaintiffs  property,  resulting  from  a  subse- 
quent inevitable  accident  which  was  the  proximate  cause  by 
which  it  was  produced.  It  is  to  the  latter  only  to  which  the 
loss  sustained  b}r  him  is  attributable. 

It  follows  from  these  considerations,  that  the  verdict  in 
the  plaintiff's  behalf  must  be  set  aside,  and  a  new  trial  be 
had ;  in  which  he  will  recover  such  damages  as  he  proves 
were  the  direct  consequence  of  the  negligence  of  which  the 
defendants  may  be  shown  to  have  been  guilt}-. 

New  trial  ordered. 


FOX  v.   BOSTON   &   MAINE   RAILROAD. 

Massachusetts,  1889.     148  Mass.  220. 

Contract  to  recover  damages  for  the  loss  of  a  car-load  of 
apples,  with  a  count  in  tort  alleged  to  be  for  the  same  cause 
of  action.  At  the  trial  in  the  Superior  Court,  before  Blodgett, 
J.,  a  verdict  was  returned  for  the  defendant,  and  the  plaintiff 
alleged  exceptions  to  a  ruling  of  the  presiding  judge,  which 
ruling,  together  with  the  material  facts,  appears  in  the  opinion. 

Morton,  C.J.  The  plaintiff  offered  to  prove  that  on 
February  22,  1881,  he  made  a  special  contract  with  the 
defendant,  by  the  terms  of  which  it  was  to  transport  a  car- 
load of  apples  from  Haverhill  to  Portland,  and  deliver  it  to 
the  Maine  Central  Railroad,  a  connecting  railroad,  in  time 
to  be  transported  by  the  latter  corporation  to  Bangor  by  a 
freight  train  which  left  Portland  early  in  the  morning  of 
February  23  ;  that  the  weather  was  mild  on  the  22d  and 
23d  days  of  February,  and  that  "  the  agreement  with  the 
defendant  was  made  with  reference  to  the  mildness  of  the 


132  CASES  ON  DAMAGES. 

weather,  and  the  importance  of  having  the  apples  delivered 
to  the  Maine  Central  Railroad  at  the  agreed  time ;  "  that 
the  defendant  negligently  delayed  to  deliver  the  apples  at  the 
time  agreed,  and  by  reason  of  this  negligence  they  "  were 
caught  in  cold  weather  in  course  of  transportation  from  Port- 
land to  Bangor,  arriving  at  the  latter  place  in  a  frozen  con- 
dition." The  presiding  judge  ruled  that,  "  if  the  market 
value  of  the  apples  when  the}7  reached  Portland  was  only 
diminished  in  the  respect  that  a  liability  of  being  frozen 
during  the  course  of  the  transportation  by  the  Maine  Central 
Railroad  was  incurred  or  increased  by  reason  of  the  negligent 
delay  of  the  defendant  in  the  transportation  from  Haverhill 
to  Portland,  the  plaintiff  cannot  recover  in  this  action  for  that 
diminution  in  market  value."  If  we  understand  this  ruling, 
its  effect  was  to  restrict  the  plaintiffs  right  to  recover  to  the 
diminution  in  the  market  value  of  the  apples  at  Portland 
caused  by  the  delay,  and  to  prevent  his  recovering  anything 
for  the  damage  to  the  apples  by  freezing  in  the  transportation 
from  Portland  to  Bangor. 

The  general  rule  is,  that  where  goods  are  delivered  in  the 
usual  way  to  a  carrier  for  transportation,  and  there  is  a 
negligent  dela}-  in  delivering  them,  the  measure  of  damage 
is  the  diminution  in  the  market  value  of  the  goods  between 
the  time  when  they  ought  to  have  been  delivered  and  the 
time  when  the}7  were  in  fact  delivered.  Ingledew  v.  Northern 
Railroad,  7  Gray,  86.  Cutting  v.  Grand  Trunk  Railway,  13 
Allen,  381.  Scott  v.  Boston  &  New  Orleans  Steamship  Co., 
106  Mass.  468.  Harvey  v.  Connecticut  &  Passumpsic  Rivers 
Railroad,  124  Mass.  421.  These  cases  are  put  upon  the  ground 
that  the  duty  of  the  carrier  is  the  measure  of  his  liability  ;  that 
his  duty  is  to  carry  the  goods  to  the  end  of  his  line,  and  that 
any  future  risks  to  which  the  goods  may  be  exposed  are  not 
within  the  contemplation  of  the  parties  or  the  scope  of  their 
contract.  But  we  think  a  different  rule  prevails  where  the  par- 
ties make  a  special  contract,  which  provides  for  certain  risks 
to  which  the  goods  are  exposed  on  the  connecting  line. 

Thus,  in  the  case  before  us,  the  parties  made  a  special 


FOX  v.   BOSTON  AND  MAINE  RAILROAD.  133 

contract,  by  which  the  defendant  agreed  to  deliver  the  apples 
to  the  Maine  Central  Railroad  by  a  fixed  time,  so  that  they 
would  arrive  in  Bangor  in  the  afternoon  of  February  23. 
Both  parties  knew  that  the  apples  were  not  to  be  sold  in 
Portland,  but  were  to  be  forwarded  to  Bangor,  and  the 
special  contract  was  made  for  the  purpose  of  avoiding  the 
danger  of  the  apples  freezing  on  the  connecting  line.  This 
risk  was  anticipated,  and  contemplated  by  the  parties,  and 
if  the  danger  which  it  was  intended  to  provide  against  was 
incurred  by  reason  of  the  negligent  failure  of  the  defendant 
to  perform  its  contract,  it  ought  to  be  responsible  in  damages. 
The  damages  are  not  too  remote.  If  the  freezing  had  occurred 
on  the  defendant's  line,  it  cannot  be  doubted  that  the  law 
would  regard  the  delay  as  the  proximate  cause  of  the  damage  ; 
it  is  none  the  less  so,  because  it  happened  on  a  connecting 
line.  The  damage  was  not  caused  by  any  extraordinary 
event  subsequently  occurring,  but  was  caused  by  an  event 
which  was,  according  to  the  common  experience,  naturally 
and  reasonably  to  be  expected,  a  change  of  temperature. 

The  case  is  thus  distinguished  from  the  cases  of  Denny 
v.  New  York  Central  Railroad,  13  Gray,  481,  and  Hoadley 
v.  Northern  Transportation  Co.,  115  Mass.  304.  In  each  of 
these  cases,  the  loss  to  the  plaintiff  was  caused  by  an  extraor- 
dinary event,  a  fire  and  a  freshet ;  and  the  court  held  that  the 
defendants,  although  guilty  of  negligent  delay,  were  not  re- 
sponsible, because  the  event  was  not  one  which  would  reason- 
ably be  anticipated.  In  the  case  at  bar,  the  event  which  caused 
the  loss  was  contemplated  by  the  parties  when  they  made  their 
contract  as  a  probable  consequence  of  the  breach  of  it. 

The  case  before  us  is  distinguishable  from  Ingledew  v. 
Northern  Railroad,  7  Gray,  86.  In  that  case  the  opinion 
is  based  upon  the  ground,  that  it  did  not  appear  that  "  the 
defendants  assumed  any  duty  in  relation  to  the  delivery  of 
the  boxes  to  another  carrier,"  or  that  they  "  were  charged 
with  any  duty  in  forwarding  the  ink  to  Keene,  or  that  the 
officers  of  the  defendant  corporation  knew  of  its  destination 
beyond  their  own  line."     The  facts  of  the  two  cases  are 


134  CASES  ON  DAMAGES. 

different,  and  for  the  reasons  above  stated  we  are  of  opinion 
that  different  rules  of  damages  are  to  be  applied  in  them, 
and  that  in  the  case  at  bar,  upon  the  facts  which  he  offered 
to  prove,  the  plaintiff  is  entitled  to  recover  the  damage  which 
he  sustained  by  reason  of  the  freezing  of  the  apples  between 
Portland  and  Bangor.  Exceptions  sustained. 


HOBBS  v.  LONDON  &  SOUTHWESTERN  RAILWAY 
Queen's  Bench,  1875.     L.  R.  10  Q.  B.  111. 

Cockburn,  C.J.  We  are  of  opinion  that  this  rule  should 
be  made  absolute  as  regards  the  £20  damages  given  in  respect 
of  the  consequences  of  the  wife  having  caught  cold  in  this 
walk  from  Esher  to  Hampton  ;  but  that  it  should  be  dis- 
charged as  regards  the  £8  in  respect  to  the  personal  incon- 
venience suffered  by  the  husband  and  the  wife  in  consequence 
of  their  not  being  taken  to,  or  put  down  at  their  proper  place 
of  destination. 

The  facts  are  simple.  The  plaintiffs  took  tickets  to  be  con- 
veyed from  the  Wimbledon  station  of  the  defendants'  railway 
to  Hampton  Court.  It  so  happened  that  the  train  did  not  go  to 
Hampton  Court,  and  the  plaintiffs  were  taken  on  to  Esher  Sta- 
tion, which  increased  the  distance  which  they  would  have  to  go 
from  the  railway  station  to  their  home  by  two  or  three  miles. 

Damages  were  asked  for  upon  two  grounds :  first,  for  the 
inconvenience  that  the  husband  and  wife,  with  their  two 
children,  sustained  by  having  to  go  this  distance,  the  night 
happening  to  be  a  wet  night ;  in  the  second  place,  damages 
were  asked  by  reason  of  the  wife,  from  her  exposure  to 
the  wet  on  that  night,  getting  a  bad  cold  and  being  ill  in 
health,  the  consequence  of  which  was  that  some  expense  was 
incurred  in  medical  attendance  upon  her.  We  think  these 
two  heads  of  damage  must  be  kept  distinct,  and  I  propose  to 
deal  with  them  as  distinct  subjects. 

With  regard  to  the  first,  there  can  be  no  doubt  whatever 
upon  the  facts  that  the  plaintiffs  were  put  to  personal  incon- 


HOBBS  v.  LONDON  &  SOUTHWESTERN  RAILWAY.     135 

venience  :  they  had  to  walk  late  at  night,  after  twelve  o'clock, 
a  considerable  distance,  the  wife  suffered  fatigue  from  it,  and 
they  had  to  carry  their  children  or  to  get  them  along  with  great 
difficulty,  the  children  being  fatigued  and  exhausted  ;  and  there 
is  no  doubt  that  there  was  personal  inconvenience  suffered  by 
the  party  on  that  occasion,  and  that  inconvenience  was  the 
immediate  consequence  and  result  of  the  breach  of  contract 
on  the  part  of  the  defendants.  The  plaintiffs  cVid  their  best  to 
diminish  the  inconvenience  to  themselves  b}'  having  recourse 
to  such  means  as  they  hoped  to  find  at  hand  ;  they  tried  to 
get  into  an  inn,  which  they  were  unable  to  do;  the}'  tried  to 
get  a  conveyance  ;  the}'  were  informed  none  was  to  be  had  ; 
and  they  had  no  alternative  but  to  walk  ;  and  therefore  it  was 
from  no  default  on  their  part,  and  it  cannot  be  doubted  that 
the  inconvenience  was  the  immediate  and  necessary  conse- 
quence of  the  breach  of  the  defendants'  contract  to  convey 
them  to  Hampton  Court.  Now  inasmuch  as  there  was  mani- 
fest personal  inconvenience,  I  am  at  a  loss  to  see  why  that 
inconvenience  should  not  be  compensated  by  damages  in 
such  an  action  as  this.  It  has  been  endeavored  to  be  argued, 
upon  principle  and  upon  authority,  that  this  was  a  kind  of 
damage  which  could  not  be  supported  ;  and  attempts  were 
also  made  to  satisf}'  us  that  this  supposed  inconvenience  was 
more  or  less  imaginary,  and  would  depend  upon  the  strength 
and  constitution  of  the  parties,  and  various  other  circum- 
stances ;  and  that  it  is  not  to  be  taken  that  a  walk  of  so  many 
additional  miles  would  be  a  thing  that  a  person  would  dislike 
or  suffer  inconvenience  from  ;  and  that  there  may  be  circum- 
stances under  which  a  walk  of  several  miles,  so  far  from  being 
matter  of  inconvenience,  would  be  just  the  contrary.  All  that 
depends  on  the  actual  facts  of  each  individual  case;  and  if 
the  jury  are  satisfied  that  in  the  particular  instance  personal 
inconvenience  or  suffering  has  been  occasioned,  and  that  it  has 
been  occasioned  as  the  immediate  effect  of  the  breach  of  the 
contract,  I  can  see  no  reasonable  principle  why  that  should  not 
be  compensated  for.  The  case  of  Hamlin  v.  Great  Northern 
Ry.  Co.,  1  H.  &  N.  408  ;   26  L.  J.  (Ex.)  20,  was  cited  as  an 


136  CASES  ON  DAMAGES. 

authorit}'  to  show  that  for  personal  inconvenience  damages 
ought  not  to  be  awarded.  That  case  appears  to  me  to  fall  far 
short  of  any  such  proposition.  It  merely  seems  to  amount  to 
this :  that  where  a  party,  by  not  being  able  to  get  to  a  place 
which  he  would  otherwise  have  arrived  at  in  time  to  meet  per- 
sons with  whom  he  had  appointments,  had  sustained  pecuniary 
loss,  that  is  too  remote  to  be  made  the  subject  of  damages  in 
an  action  upon  a  breach  of  contract.  That  may  be  perfectly 
true,  because,  as  in  every  one  of  the  instances  cited,  you  would 
have  to  go  into  the  question  whether  there  was  a  loss  arising 
from  the  breach  of  contract,  before  you  could  assess  that  loss. 
And,  after  all,  if  the  true  principle  be  laid  down  in  Hadley  v. 
Baxeudale,  9  Ex.  341 ;  23  L.  J.  (Ex.)  179,  the  damage  must 
be  something  which  is  in  the  contemplation  of  the  parties  as 
likely  to  result  from  a  breach  of  contract ;  and  it  is  impossible 
that  a  company  who  undertake  to  carry  a  passenger  to  a  place 
of  destination  can  have  in  their  minds  all  the  circumstances 
which  may  result  from  the  passenger  being  detained  on  the  jour- 
ney. As  far  as  the  case  of  Hamlin  v.  Great  Northern  Ry.  Co. 
goes,  I  am  far  from  saying  it  was  a  wrong  decision  ;  but  it  did 
not  decide  that  personal  inconvenience,  however  serious,  was 
not  to  be  taken  into  account  as  a  subject-matter  of  damage  in  a 
breach  of  contract  of  a  carrier  to  convey  a  person  to  a  particular 
destination.  If  it  did,  I  should  not  follow  that  authority  ;  but  I 
do  not  think  it  applicable  to  this  case  at  all.  I  think  there  is 
no  authority  that  personal  inconvenience,  where  it  is  sufficiently 
serious,  should  not  be  the  subject  of  damages  to  be  recovered 
in  an  action  of  this  kind.  Therefore,  on  the  first  head,  the  £8, 
I  think  the  verdict  ought  to  stand. 

With  regard  to  the  second  head  of  damage,  the  case  assumes 
a  very  different  aspect.  I  see  very  great  difficulty  indeed  in 
coming  to  any  other  conclusion  than  that  the  £20  is  not  re- 
coverable ;  and  when  we  are  asked  to  lay  down  some  principle 
as  a  guiding  rule  in  all  such  cases,  I  quite  agree  with  my 
Brother  Blackburn  in  the  infinite  difficulty  there  would  be 
in  attempting  to  lay  down  any  principle  or  rule  which  shall 
cover  all  such  cases  ;  but  I  think  that  the  nearest  approach  to 


HOBBS  v.  LONDON  &  SOUTHWESTERN  RAILWAY.      137 

anything  like  a  fixed  rule  is  this  :  That  to  entitle  a  person  to 
damages  by  reason  of  a  breach  of  contract,  the  injury  for 
which  compensation  is  asked  should  be  one  that  may  be  fairly 
taken  to  have  been  contemplated  by  the  parties  as  the  possible 
result  of  the  breach  of  contract.  Therefore  you  must  have 
something  immediate!}'  flowing  out  of  the  breach  of  contract 
complained  of,  something  immediately  connected  with  it,  and 
not  merely  connected  with  it  through  a  series  of  causes  inter- 
vening between  the  immediate  consequence  of  the  breach  of 
contract  and  the  damage  or  injury  complained  of.  To  illus- 
trate that  I  cannot  take  a  better  case  than  the  one  now  before  us : 
Suppose  that  a  passenger  is  put  out  at  a  wrong  station  on  a 
wet  night  and  obliged  to  walk  a  considerable  distance  in  the 
rain,  catching  a  violent  cold  which  ends  in  a  fever,  and  the 
passenger  is  laid  up  for  a  couple  of  months,  and  loses  through 
this  illness  the  offer  of  an  employment  which  would  have 
brought  him  a  handsome  salary.  No  one,  I  think,  who  under- 
stood the  law,  would  say  that  the  loss  so  occasioned  is  so  con- 
nected with  the  breach  of  contract  as  that  the  carrier  breaking 
the  contract  could  be  held  liable.  Here,  I  think,  it  cannot  be 
said  the  catching  cold  by  the  plaintiff's  wife  is  the  immediate 
and  necessary  effect  of  the  breach  of  contract,  or  was  one 
which  could  be  fairly  said  to  have  been  in  the  contemplation 
of  the  parties.  As  my  Brother  Blackburn  points  out,  so  far  as 
the  inconvenience  of  the  walk  home  is  concerned,  that  must  be 
taken  to  be  reasonably  within  the  contemplation  of  the  parties  ; 
because,  if  a  carrier  engages  to  put  a  person  down  at  a  given 
place,  and  does  not  put  him  down  there,  but  puts  him  down 
somewhere  else,  it  must  be  in  the  contemplation  of  everybody 
that  the  passenger  put  down  at  the  wrong  place  must  get  to 
the  place  of  his  destination  somehow  or  other.  If  there 
are  means  of  conveyance  for  getting  there,  he  may  take 
those  means  and  make  the  company  responsible  for  the  ex- 
pense ;  but  if  there  are  no  means,  I  take  it  to  be  law  that  the 
carrier  must  compensate  him  for  the  personal  inconvenience 
which  the  absence  of  those  means  has  necessitated.  That 
flows  out  of  the  breach  of  contract  so  immediately  that  the 


138  CASES  ON   DAMAGES. 

damage  resulting  must  be  admitted  to  be  fair  subject-matter 
of  damages.  But  in  this  case  the  wife's  cold  and  its  conse- 
quences cannot  stand  upon  the  same  footing  as  the  personal 
inconvenience  arising  from  the  additional  distance  which  the 
plaintiffs  had  to  go.  It  is  an  effect  of  the  breach  of  contract 
in  a  certain  sense,  but  removed  one  stage  ;  it  is  not  the  pri- 
mary but  the  secondary  consequence  of  it :  and  if  in  such  a 
case  the  party  recovered  damages  by  reason  of  the  cold  caught 
incidentally  on  that  foot  journey,  it  would  be  necessary,  on  the 
principle  so  applied,  to  hold  that  in  the  two  cases  which  have 
been  put  in  the  course  of  the  discussion,  the  party  aggrieved 
would  be  equally  entitled  to  recover.  And  yet  the  moment 
the  cases  are  stated,  everybody  would  agree  that,  according 
to  our  law,  the  parties  are  not  entitled  to  recover.  I  put  the 
case  :  Suppose  in  walking  home,  on  a  dark  night,  the  plaintiff 
made  a  false  step  and  fell  and  broke  a  limb,  or  sustained 
bodily  injury  from  the  fall,  everybody  would  agree  that  that 
is  too  remote,  and  is  not  the  consequence  which,  reasonably 
speaking,  might  be  anticipated  to  follow  from  the  breach  of 
contract.  A  person  might  walk  a  hundred  times,  or  indeed 
a  great  many  more  times,  from  Esher  to  Hampton  without 
falling  down  and  breaking  a  limb  ;  therefore  it  could  not  be 
contended  that  that  could  have  been  anticipated  as  the  likely 
and  the  probable  consequence  of  the  breach  of  contract. 
Again,  the  party  is  entitled  to  take  a  carriage  to  his  home. 
Suppose  the  carriage  overturns  or  breaks  down,  and  the  party- 
sustains  bodily  injury  from  either  of  those  causes,  it  might  be 
said  :  "  If  you  had  put  me  down  at  my  proper  place  of  destina- 
tion, where  by  your  contract  you  engaged  to  put  me  down, 
I  should  not  have  had  to  walk  or  to  go  from  Esher  to  Hampton 
in  a  carriage,  and  I  should  not  have  met  with  the  accident  in  the 
walk  or  in  the  carriage."  In  either  of  those  cases  the  injury  is 
too  remote,  and  I  think  that  is  the  case  here ;  it  is  not  the 
necessary  consequence,  it  is  not  even  the  probable  consequence 
of  a  person  being  put  down  at  an  improper  place,  and  having 
to  walk  home,  that  he  should  sustain  either  personal  injury  or 
catch  a  cold.     That  cannot  be  said  to  be  within  the  contem- 


HOBBS  v.  LONDON  &  SOUTHWESTERN  RAILWAY.     139 

plation  of  the  parties  so  as  to  entitle  the  plaintiff  to  recover, 
and  to  make  the  defendants  liable  to  pay  damages  for  the 
consequences.  Therefore,  as  regards  the  damages  awarded 
in  respect  of  the  wife's  cold,  the  rule  must  be  made  absolute 
to  reduce  the  damages  by  that  amount. 

Blackburn,  J.1  I  am  of  the  same  opinion.  I  think  the 
rule  should  be  made  absolute  to  reduce  the  damages  to  £8 
beyond  the  £2  paid  into  court,  but  should  not  be  made  abso- 
lute any  further.  The  action  is  in  reality  upon  a  contract ; 
it  is  commonly  said  to  be  founded  upon  a  duty,  but  it  is  a  duty 
arising  out  of  a  contract.  It  is  a  contract  by  which  the  rail- 
way company  had  undertaken  to  carry  four  persons  to  Hamp- 
ton Court,  and  in  fact  that  contract  was  broken  when  they 
landed  the  passengers  at  Esher,  instead  of  Hampton  Court. 
The  contract  was  to  supply  a  conveyance  to  Hampton  Court, 
and  it  was  not  supplied.  Where  there  is  a  contract  to  supply 
a  thing  and  it  is  not  supplied,  the  damages  are  the  difference 
between  that  which  ought  to  have  been  supplied  and  that  which 
you  have  to  pa}-  for,  if  it  be  equally  good  ;  or  if  the  thing  is 
not  obtainable,  the  damages  would  be  the  difference  between 
the  thing  which  you  ought  to  have  had  and  the  best  substitute 
you  can  get  upon  the  occasion  for  the  purpose.  .  .  .  On  the 
first  head  of  damages  in  this  case,  I  do  not  see  that  we  can 
cut  down  the  damages  below  what  the  jury  have  found. 

Then  comes  the  further  question,  whether  the  damages  for 
the  illness  of  the  wife  are  recoverable  ;  I  think  the)'  are  not, 
because  the}'  are  too  remote.  On  the  principle  of  what  is  too 
remote,  it  is  clear  enough  that  a  person  is  to  recover  in  the 
case  of  a  breach  of  contract  the  damages  directly  proceeding 
from  that  breach  of  contract  and  not  too  remotely.  Although 
Lord  Bacon  had,  long  ago,  referred  to  this  question  of  remote- 
ness, it  has  been  left  in  very  great  vagueness  as  to  what  con- 
stitutes the  limitation  ;  and  therefore  I  agree  with  what  my 
Lord  has  said  to-day,  that  you  make  it  a  little  more  definite  by 
saying  such  damages  arc  recoverable  as  a  man  when  making 

1  Part  of  this  opinion,  and  the  concurring  opinions  of  Mellor  and 
Archibald,  JJ.,  are  omitted. 


140  CASES   ON  DAMAGES. 

the  contract  would   contemplate  would  flow  from  a  breach 
of  it.     For  my  own  part,  I  do  not  feel  that  I  can  go  further 
than  that.     It  is  a  vague  rule,  and  as  Bramwell,  B.,  said,  it  is 
something  like  having  to  draw  a  line  between  night  and  day  ; 
there  is  a  great  duration  of  twilight  when  it  is  neither  night  nor 
day  ;  but  on  the  question  now  before  the  court,  though  you  can- 
not draw  the  precise  line,  you  can  say  on  which  side  of  the  line 
the  case  is  ;  I  do  not  see  the  analogy  between  this  case  and  the 
case  that  was  suggested,  where  a  railway  company  made  a  con- 
tract to  carry  a  passenger,  and  from  want  of  reasonable  care 
they  dashed  that  passenger  down  and  broke  his  leg,  and  he 
recovers  damages  from  them.     For  such  a  breach  as  that,  the 
most  direct,  immediate  consequence  is,  that  he  would  be  lamed. 
That  is  the  direct  consequence  of  such  a  breach  of  contract ; 
but  though  here  the  contract  is  the  same,  a  contract  to  carry 
the  passenger,  the  nature  of  the  breach  is  quite  different ;  the 
nature  of  the  breach  is  simply  that  they  did  not  carry  the  plain- 
tiff to  his  destination,  but  left  him  at  Esher.     To  illustrate 
this,  —  Suppose  you  expand  the  declaration,  and  say:  You, 
the.  defendants,  contracted  to  carry  me  safely  to  Hampton 
Court,  you  negligently  upset  the  carriage  and  clashed  me  on 
the  ground,  whereby  I  became  ill  and  sick.     That  is  a  clear 
and  immediate  consequence.     The  other  case  is :  You  con- 
tracted to  carry  me  to  Hampton  Court,  you  went  to  Esher, 
and  put  me  down  there,  by  which  I  was  obliged  to  get  other 
means  of  conveyance,  for  the  purpose  of  getting  to  Hampton 
Court ;  and  because  I  could  find  no  fly  or  other  conveyance, 
I  was  obliged,  as  the  only  means  of  getting  to  Hampton,  to 
walk  there,  and  because  it  was  a  cold  and  wet  night,  I  caught 
cold,  and  I  became  ill.     When  it  is  put  in  that  way,  there  are 
many  causes  or  stages  which  there  are  not  in  the  other. 

With  regard  to  the  two  instances  my  Lord  put,  — one,  of 
the  passenger,  when  walking  home  in  the  dark,  stumbling 
and  breaking  his  leg ;  the  other,  of  his  hiring  a  carriage,  and 
the  carriage  breaking  down,  —  I  must  say  I  think  they  are 
on  the  remote  side  of  the  line,  and  farther  from  it  than  the 
present  case.     I  do  not  think  it  is  any  one's  fault  that  it 


McMAHON  v.  FIELD.  141 

cannot  be  put  more  definitely  ;  I  think  it  must  be  left  as  vague 
as  ever,  as  to  where  the  line  must  be  drawn  ;  but  I  think  in 
each  ease  the  court  must  say  whether  it  is  on  the  one  side  or  the 
other  ;  and  I  do  not  think  that  the  question  of  remoteness  ought 
ever  to  be  left  to  a  jury  ;  that  would  be  in  effect  to  say  that 
there  shall  be  no  such  rule  as  to  damages  being  too  remote  ; 
and  it  would  be  highly  dangerous  if  it  was  to  be  left  generally 
to  the  jury  to  say  whether  the  damage  was  too  remote  or  not. 

I  think,  therefore,  the  rule  ought  to  be  made  absolute  to 
reduce  the  damages  to  the  £8  beyond  the  £2. 

Rule  accordingly. 

McMAHON  v.   FIELD. 

Court  of  Appeal,  1881.     7  Q.  B.  Div.  591. 

Brett,  L.J.  The  question  as  to  the  remoteness  of  damage 
has  become  a  difficult  one  since,  according  to  the  case  of 
Hadley  v.  Baxendale,  9  Ex.  341  ;  23  L.  J.  (Ex.)  179,  it  is 
for  the  ,epurt  and  not  the  Jury  to  determine  whether  the 
case  comes  within  any  of  the  following  rules,  namely,  first, 
whether  the  damage  is  the  necessary  consequence  of  the 
breach  ;  secondly,  whether  it  is  the  probable  consequence ; 
and  thirdly,  whether  it  was  in  the  contemplation  of  the 
parties  when  the  contract  was  made.  Those  two  last  are 
rather  questions  of  fact  for  a  jury,  than  of  law  for  the 
court,  to  determine.  Now,  the  question  in  this  case  is 
whether  the  fact  of  some  of  these  horses  taking  cold  is 
within  any  of  those  three  rules.  It  was  not  the  neces- 
sary consequence  of  the  breach  of  contract,  but  I  have  no 
doubt  that  it  was  the  probable  consequence,  and  if  so,  it 
follows  that  it  was  in  the  contemplation  of  the  parties  within 
the  meaning  of  the  third  rule.  It  is  necessary  to  consider 
the  facts  of  this  case.  The  jury  have  found  that  the  cold 
which  the  horses  took  was  the  result  of  the  breach  of  con- 
tract, and  we  are  asked  to  say  that  such  a  finding  was 
unreasonable,  and  that  the  question  was  one  which  ought 
never  to  have  been  left  to  them.     The  plaintiff  had  to  bring 


142  CASES   ON  DAMAGES. 

a  number  of  horses  from  Ireland  to  the  Rugeley  fair,  and  he 
had  engaged  of  the  defendant  stabling  for  twelve  horses. 
It  was  the  defendant  who  had  afterwards  let  to  some  one 
else  the  stables  which  the  plaintiff  had  taken,  and  who  when 
the  plaintiff's  horses  arrived  turned  out  the  horses  of  that 
other  person  and  put  the  plaintiff's  horses  in.     The  result  of 
that  was  what  might  have  been  expected;  when  the  other 
person  returned  and  found  his  horses  had  been  removed,  he 
caused  the  plaintiff's  horses,  nine  in  number,  to  be  tinned 
out,  and  in  effecting  this  he  had  the  assistance  of  one  of  the 
defendant's  servants.     It  was  then  the  fair  time,  and  it  was 
next  to  impossible  to  find  at  once  stabling  elsewhere  for  nine 
horses,  so  that  these  horses  which  had  just  arrived  from  a 
railway  journey,  and  were  therefore  probably  feverish,  and 
had  been  put  long  enough  into  stables  to  have  had  their 
clothes   removed,  were   thus  put  out  and  exposed   to  the 
weather.     That  is  a  thing  which  nobody  would  do  to  horses 
who  understood  anything  about  them,  as  the  probability  is 
that  they  would  catch  cold.     If  such  a  question  could  be  left 
to  a  jury,  they  would  find,  as  this  jury  did,  that  it  was  the 
probable  consequence  of   such  an  act  as  this.      Then  it  is 
said  that  the  case  is  governed  by  that  of  Hobbs  v.  London 
and  South  Western  Ry.  Co.,  Law  Rep.  10  Q.  B.  111.     Now, 
I  must  confess  that  if  I  acquiesce  in  that  case  I  cannot  quite 
agree  with  it.   What  were  the  facts  there  ?   A  man  with  his  wife 
and  children  took  a  ticket  by  the  train  to  Hampton  Court,  his 
residence  being  between  two  and  three  miles  from  Hampton 
Court.     The  train  did  not  go  to  Hampton  Court,  but  took 
them  to  Esher  Station,  where  they  were  turned  out  at  about 
12  o'clock  on  a  wet  night,  and,  being  unable  to  get  any  con- 
veyance or  accommodation  at  an  inn,  were  obliged  to  walk 
about  six  miles  to  their  home.     The  wife  in  consequence  of 
the  exposure  caught  a  cold,  and  it  was  said  that  such  dam- 
age  was   too   remote   to  be   recovered.      Why  was   it   too 
remote  ?     There  was  no  accommodation  or  conveyance  to  be 
obtained  at  Esher  at  that  time  of  night,  so  that  it  was  not 
only  reasonable  that  they  should  walk,  but  they  were  obliged 


MURDOCK  v.  BOSTON  AND  ALBANY  RAILROAD.      143 

to  do  so.  Why  was  it  that  which  happened  was  not  the 
natural  consequence  of  the  breach  of  contract  ?  Suppose  a 
man  let  lodgings  to  a  woman,  and  then  turned  her  out  in  the 
middle  of  the  night  with  only  her  nightclothes  on,  would  it 
not  be  a  natural  consequence  that  she  would  take  a  cold? 
Had  Esher  Station  been  a  large  one,  and  there  had  been 
flys  which  might  have  been  had,  or  accommodation  at  an  inn, 
and  the  passengers  had  refused  such  and  elected  to  walk 
home,  I  should  have  thought  then  that  what  happened  arose 
from  their  own  fault,  but  that  was  not  so  ;  yet,  nevertheless, 
the  judges  who  decided  Hobbs  v.  London  and  South  Western 
Ry.  Co.  decided,  as  a  matter  of  fact,  that  the  cold  was 
so  improbable  a  consequence  that  it  was  not  to  be  left  to  the 
jury  whether  it  was  occasioned  by  the  breach  of  contract. 
It  is  not,  however,  necessary  for  me  to  say  more  than  that  I 
am  not  contented  with  it,  for  there  is  a  difference  between 
such  a  case  and  the  present  one.  People  do  get  out  of  a 
train  and  walk  home  at  night  without  catching  cold,  and  it  is 
not  nearly  so  inevitable  a  consequence  that  a  person  getting 
out  of  a  train  under  such  circumstances  as  in  Hobbs  v. 
London  and  South  Western  Ry.  Co.  should  catch  cold, 
as  that  horses  turned  out,  as  these  were  in  this  case,  should 
suffer.  There  is,  therefore,  a  difference,  though  I  own  I  do 
not  see  much,  between  this  case  and  that  of  Hobbs  v.  London 
and  South  Western  Ry.  Co.  This  appeal  ought,  I  think, 
to  be  allowed,  and  it  must  be  considered  that  in  so  deciding 
we  are  not  deciding  contrary  to  the  opinion  of  Mr.  Justice 
Fry,  who  thought  that  the  plaintiff  ought  to  be  allowed  to 
recover  this  damage.  Appeal  allowed.1 


MURDOCK  v.  BOSTON  AND  ALBANY   RAILROAD. 

Massachusetts,  1882.     133  Mass.  15. 

Morton,  C.J.     This  is  an  action  of  contract  to  recover 
damages  for  a  breach  of  the  defendant's  contract  to  carry  the 

1  Bramweli.  and  Cotton,  L.JJ.,  delivered  concurring  opinions. 


144  CASES  ON  DAMAGES. 

plaintiff  as  a  passenger  on  its  railroad  from  Springfield  to 
North  Adams.  It  appeared  at  the  trial  that  the  plaintiff 
bought  a  ticket  at  Springfield,  which  entitled  him  to  be 
carried  to  North  Adams;  that  the  defendant's  conductor 
refused  to  receive  the  ticket,  and,  when  the  train  arrived  at 
Pittsfield,  the  conductor,  who  was  a  railroad  police  officer, 
arrested  the  plaintiff  for  evading  his  fare,  and  delivered  him 
into  the  custody  of  two  police  officers  of  Pittsfield,  who 
detained  him  during  the  night  in  the  place  of  detention 
provided  for  arrested  persons.  The  learned  justice  who 
presided  in  the  Superior  Court  ruled  that  the  plaintiff  was 
entitled  to  recover  damages  for  this  arrest  and  imprisonment, 
for  indignities  which  the  plaintiff  contended  that  he  suffered 
at  the  hands  of  the  Pittsfield  police  officers,  for  his  mental 
suffering,  and  for  sickness  produced  by  a  cold  caught  while 
confined. 

The  distinction  between  the  rules  of  damages  applicable  in 
actions  of  contract  and  of  tort  appears  to  have  been  over- 
looked at  the  trial.  Without  inquiring  whether  all  the  ele- 
ments of  damage  admitted  by  the  court  would  be  competent, 
if  this  had  been  an  action  of  tort  for  an  assault  and  false 
imprisonment,  we  are  of  opinion  that  too  broad  a  rule  was 
adopted  in  this  case.  Damages  for  a  breach  of  a  contract 
are  limited  to  such  as  are  the  natural  and  proximate  conse- 
quences of  the  breach,  such  as  may  fairly  be  supposed' 
to  enter  into  the  contemplation  of  the  parties  when  they 
made  the  contract,  and  such  as  might  naturally  be  expected 
to  result  from  its  violation.  The  detention  of  the  plaintiff 
during  the  night,  his  discomforts  in  the  place  of  detention, 
the  cold  which  he  took  by  reason  of  the  dampness  of  the 
cell,  and  the  indignities  he  suffered  from  the  police  officers  of 
Pittsfield,  were  not  the  immediate  consequences  of  the 
breach  of  the  defendant's  contract  to  carry  the  plaintiff  to 
North  Adams.  They  were  the  results  of  intervening  causes, 
not  the  primary,  but  the  secondary,  effects  of  the  breach 
of  contract ;  and  are  too  remote  to  come  within  the  rule  of 
damages  applicable   in   an   action  of  contract.     Hobbs  v. 


BROWN  v.  CHICAGO,  MILWAUKEE  &  ST.  P.  RAILWAY.     145 

London  &  Southwestern  Railway,  L.  R.  10  Q.  B.  111.  The 
plaintiffs  remedy  for  these  wrongs,  if  proved,  is  by  an  action 
of  tort.  The  defendant  was  not  required  to  be  ready  to 
meet  and  contest  these  questions  under  a  declaration  alleging 
a  breach  of  a  contract  to  carry  the  plaintiff  to  North  Adams. 

Exceptions  sustained. 

R.  M.  Morse,  Jr.,  for  the  plaintiff,  was  first  called  upon. 

G.  S.  Hale  &  C.  F.  Walcott,  for  the  defendant,  were  not 
called  upon. 


BROWN  v.  CHICAGO,  MILWAUKEE,  AND  ST.  PAUL 
RAILWAY. 

Wisconsin,  1882.     54  Wis.  342. 

Taylor,  J.1  In  this  case  we  deem  it  material  to  determine 
whether  the  action  is  an  action  for  a  tort,  or  an  action  for  a 
breach  of  the  contract  to  carry  the  plaintiffs  to  their  destina- 
tion, because  we  think  the  rules  of  damages  in  the  two  actions 
are  essentially  different.  We  hold  that  the  action  in  this  case 
is  based  upon  the  tort  of  the  defendant  in  negligently  and 
carelessly  directing  the  plaintiffs  to  leave  the  cars  before  they 

reached  their  destination.2 

% 

1  Part  of  the  opinion  is  omitted. 

2  Counsel  for  defendant  lias  discussed  at  some  length  the  question 
whether  this  is  an  action  ex  contractu  or  an  action  ex  delicto.  Inasmuch 
as  the  conductor  did  nothing  hut  what  he  would  have  had  a  right  to  do 
had  plaintiff  had  no  right  to  ride  on  the  ticket,  it  is  evident  that  plaintiff 
could  not  have  maintained  the  action  at  all  without  pleading  and  proving 
his  contract  with  the  defendant,  and  its  breach  either  by  malfeasance  or 
non-feasance.  In  other  words,  an  action  could  not  have  been  maintained 
for  a  tort  simply  without  reference  to  the  contract  between  the  parties. 
In  that  sense  it  is  an  action  arising  on  a  contract.  But  it  is  not  an  action 
on  the  contract,  properly  so  called.  The  gist  or  gravamen  of  it  is  a  tor- 
tious act,  which  constituted  a  breach  of  the  contract.  It  is  what  is  some- 
times called  "  an  action  for  tort  founded  on  contract  "  or  "  an  action  ex 
quasi  contractu."  In  considering  the  measure  of  damages  and  the  ele- 
ments of  damage  proper  to  be  considered,  the  courts  in  this  country  have 
almost  universally  treated  such  actions  as  sounding  in  tort,  and  have 
held  that  the  passenger  who  was  wrongfully  ejected  from  the  train  could 

10 


146  CASES   ON   DAMAGES. 

The  plaintiffs  claim,  and  the  evidence  shows,  that  they  and 
their  child,  about  seven  years  old,  were  directed  to  leave  the 
cars,  by  the  brakeman,  at  a  place  some  three  miles  east  of 
Mauston,  being  told  at  the  time  that  it  was  Maustou,  their 
place  of  destination.  When  they  left  the  cars  it  was  night ; 
it  was  cloudy,  and  had  rained  the  day  before ;  there  was  a 
freight  train  standing  on  a  side  track  where  they  were  put  off 
the  train  ;  there  was  no  platform,  and  no  lights  visible  except 
those  on  the  freight  train.  Plaintiffs  soon  ascertained  that 
they  were  not  at  Mauston,  and  did  not  know  where  they  were. 
They  did  not  see  the  station-house,  although  there  was  one, 
but  it  was  hid  from  their  view  by  the  freight  train  standing 
on  the  side  track.  They  supposed  they  were  at  a  place  two 
miles  east,  where  the  train  sometimes  stopped,  but  where 
there  was  no  station-house.  The}'  started  west  on  the  track 
towards  Mauston,  expecting  to  find  a  house  where  they  might 
stop,  but  did  not  find  one  until  they  came  to  the  bridge, 
about  a  mile  east  of  Mauston,  and  then  they  thought  it  easier 
to  go  on  to  Mauston  than  seek  shelter  at  the  house,  which 
was  a  considerable  distance  from  the  track.  The}*  went  on 
to  Mauston,   and  arrived  there  late  at   night,  Mrs.  Brown 

recover  all  damages  sustained  by  him,  as  the  direct  and  natural  conse- 
quence of  the  wrongful  act,  such  as  the  indignity  of  being  ejected 
and  injury  to  the  health  through  exposure  to  the  weather.  This  is  the 
rule  recognized  and  adopted  by  this  court  in  Carsten  v.  Railroad  Co  ,  44 
Minn.  454,  47  N.  W.  Rep.  49,  and  Hoffman  v.  Same,  45  Minn.  53,  47  N.  W. 
Rep.  312.  The  leading  case  in  England  on  the  subject  is  the  Hobbs 
Case,  L.  R.  10  Q.  B.  Ill,  which,  however,  was  disapproved  in  McMahon 
v.  Field,  7  Q.  B.  Div.  591.  While  the  authority  of  that  case  has  been 
generally  acknowledged,  at  least  nominally,  in  this  country,  yet,  as  Mr. 
Sedgwick  in  his  work  on  Damages  (section  868)  remarks,  the  practical 
effect  of  it  has  been  virtually  neutralized  in  most  jurisdictions  by  hold- 
ing, as  already  stated,  that  actions  like  the  present  sound  in  tort.  But  it 
seems  to  us  that  very  often  a  great  deal  of  time  and  learning  has  been 
unnecessarily  expended  in  discussing  the  exact  nature  of  such  an  action. 
The  important  question,  after  all,  is  whether  the  injury  was  the  direct 
and  proximate,  or  only  the  remote,  consequence  of  the  wrongful  expul- 
sion.—  Mitchell,  J.,  in  Serwe  v.  Northern  Pacific  Railroad,  48  Minn.  78, 
81  (1892). 


BROWN  v.  CHICAGO,  MILWAUKEE  &  ST.  P.  RAILWAY.     147 

quite  exhausted  from  the  walk.  She  was  pregnant  at  the  time. 
She  had  severe  pains  during  the  night,  and  the  pains  continued 
from  time  to  time,  and  after  a  few  days  she  commenced 
flowing.  The  pains  and  flowing  continued  until  some  time  in 
December,  when  a  miscarriage  took  place,  after  which  inflam- 
mation set  in,  and  for  some  time  she  was  so  sick  that  she  was 
in  imminent  danger  of  dying.  The  plaintiffs  claim  that  the 
miscarriage  and  subsequent  sickness  were  all  caused  by  the 
walk  Mrs.  Brown  was  compelled  to  take  to  get  from  the  place 
where  the}'  were  left  by  the  train  to  Mauston. 

The  important  question  in  the  case  is,  whether  the  appellant 
is  liable  for  the  injury  to  Mrs.  Brown,  admitting  that  it  was 
caused  b}7  her  walk  to  Mauston.  Whether  the  sickness  of 
Mrs.  Brown  was  caused  by  the  walk  to  Mauston  was  an  issue 
in  the  case,  and  the  jury  have  found  upon  the  evidence  that  it 
was  caused  by  the  walk.  There  is  certainly  some  evidence  to 
sustain  this  finding  of  the  jury,  and  their  finding  is  therefore 
conclusive  upon  this  point.  Admitting  that  the  walk  caused 
the  miscarriage  and  sickness  of  the  plaintiff  Mrs.  Brown,  it  is 
insisted  by  the  learned  counsel  for  the  appellant,  that  the  ap- 
pellant is  not  liable  for  such  injury  ;  that  it  is  too  remote  to  be 
the  subject  of  an  action  ;  that  the  negligence  and  carelessness 
of  the  defendant's  employees  in  putting  the  plaintiffs  off  the 
cars  at  the  place  they  did,  was  not  the  proximate  cause  of 
the  miscarriage  and  sickness,  and  for  that  reason  the  appel- 
lant company  is  not  liable  therefor.   .   .   . 

The  rules  which  limit  the  damages  in  actions  of  tort,  so  far 
as  any  general  rules  can  be  established,  are  in  man}-  respects 
different  from  those  in  actions  on  contract.  The  general  rule 
is,  that  the  party  who  commits  a  trespass  or  other  wrongful 
act  is  liable  for  all  the  direct  injury  resulting  from  such  act, 
although  such  resulting  injury  could  not  have  been  contem- 
plated as  a  probable  result  of  the  act  done.  .  .  .  One  who 
commits  a  trespass  or  other  wrong  is  liable  for  all  the  damage 
which  legitimately  flows  directly  from  such  trespass  or  wrong, 
whether  such  damages  might  have  been  foreseen  by  the 
wrong-doer  or  not. 


148  CASES  ON  DAMAGES. 

As  stated  by  Justice  Colt  in  the  case  of  Hill  v.  Winsor, 
118  Mass.  251 :  "It  cannot  be  said,  as  a  matter  of  law,  that 
the  jury  might  not  properly  find  it  obviously  probable  that 
injury  in  some  form  would  be  caused  to  those  who  were  at 
work  on  the  fender  by  the  act  of  the  defendants  in  running 
against  it.  This  constitutes  negligence,  and  it  is  not  neces- 
sary that  the  injury,  in  the  precise  form  in  which  it  in  fact 
resulted,  should  have  been  foreseen.  It  is  enough  that  it  now 
appears  to  have  been  a  natural  and  probable  consequence." 

In  the  case  of  Bowas  v.  Pioneer  Tow  Line,  2  Sawy.  21, 
Judge  Hoffman,  speaking  of  the  rule  in  relation  to  damages 
on  a  breach  of  contract,  as  contrasted  with  the  rule  in  case  of 
wrongs,  says  :  "  The  effect  of  this  rule  is  more  often  to  limit 
than  to  extend  the  liability  for  a  breach  of  contract,  although 
sometimes,  when  the  special  circumstances  under  which  the 
contract  was  made  have  been  communicated,  damages  conse- 
quential upon  a  breach  made  under  those  circumstances  will 
be  deemed  to  have  been  contemplated  by  the  parties,  and  may 
be  recovered  by  the  defendant.  But  this  rule,  as  Mr.  Sedg- 
wick remarks,  has  no  application  to  torts.  He  who  commits 
a  trespass  must  be  held  to  contemplate  all  the  damage  which 
may  legitimately  flow  from  his  illegal  act,  whether  he  may 
have  foreseen  them  or  not ;  and  so  far  as  it  is  plainly  trace- 
able, he  must  make  compensation  for  it." 

The  justice  and  propriety  of  this  rule  are  manifest,  when 
applied  to  cases  of  direct  injury  to  the  person.  If  one  man 
strike  another,  with  a  weapon  or  with  his  hand,  he  is  clearly 
liable  for  all  the  direct  injury  the  party  struck  sustains  there- 
from. The  fact  that  the  result  of  the  blow  is  unexpected  and 
unusual,  can  make  no  difference.  If  the  wrong-doer  should 
in  fact  intend  but  slight  injury,  and  deal  a  blow  which  in 
ninety-nine  cases  in  a  hundred  would  result  in  a  trifling  in- 
jury, and  yet  by  accident  produce  a  verj-  grave  one  to  the 
person  receiving  it,  owing  either  to  the  state  of  health  or 
other  accidental  circumstances  of  the  part}',  such  fact  would 
not  relieve  the  wrong-doer  from  the  consequences  of  his  act. 
The  real  question  in  these  cases  is,  Did  the  wrongful  act  pro- 


BROWN  v.  CHICAGO,  MILWAUKEE  &  ST.  P.  RAILWAY.     149 

duce  the  injury  complained  of  ?  and  not  whether  the  party 
committing  the  act  could  have  anticipated  the  result.  The 
fact  that  the  act  of  the  party  giving  the  blow  is  unlawful, 
renders  him  liable  for  all  its  direct  evil  consequences. 

This  was  the  substance  of  the  decision  in  the  old  and  often 
cited  squib  case  of  Scott  v.  Shepherd,  2  W.  Bl.  892.  Justice 
Nares  there  says  that,  "  the  act  of  throwing  the  squib  being 
unlawful,  the  defendant  was  liable  to  answer  for  the  conse- 
quences, be  the  injury  mediate  or  immediate  ; "  aud  in  this 
view  of  the  case  all  the  judges  agreed,  although  they  differed 
upon  the  question  as  to  the  form  of  the  action. 

In  the  case  at  bar,  the  question  to  be  determined  is,  whether 
the  negligent  act  of  the  defendant's  employees  in  putting  the 
plaintiffs  and  their  child  off  the  train  in  the  night-time,  at  the 
place  where  they  did,  was  the  direct  cause  of  the  injury  com- 
plained of  by  the  plaintiffs,  or  whether  it  was  only  a  remote 
cause  for  which  no  action  lies.  We  must,  in  considering  this 
case,  take  it  for  granted  that  the  walk  from  the  place  where 
they  left  the  cars  to  Mauston  was  the  immediate  cause  of  the 
injury  complained  of.  We  think  the  question  whether  there 
was  any  negligence  on  the  part  of  the  plaintiffs  in  taking  the 
walk,  was  properly  left  to  the  jury,  as  a  question  of  fact ;  and 
they  found  that  they  were  guilty  of  no  negligence  on  their 
part.  They  found  themselves  placed  by  the  wrongful  act  of 
the  defendant  where  it  became  necessary  for  their  protection 
to  make  the  journey.  The  fact  that  there  was  a  station-house 
near  by,  at  which  they  might  have  found  shelter  until  another 
train  came  by,  is  not  conclusive  that  the  plaintiffs  were  negli- 
gent in  the  matter.  They  were  landed  at  a  place  where  they 
could  not  see  it,  and  the  jury  have  found  that  under  the  cir- 
cumstances they  were  not  guilt}T  of  negligence  in  not  finding 
it.  The  defendant  must  therefore  be  held  to  have  caused  the 
plaintiffs  to  make  the  journey  as  the  most  prudent  thing  for 
them  to  do  under  the  circumstances.  And,  we  think,  under  the 
rules  of  law,  the  defendant  must  be  liable  for  the  direct  conse- 
quences of  the  journey.  Had  the  defendant  wrongfully  placed 
the  plaintiffs  off  the  train  in  the  open  country,  where  there  was 


J50  CASES   ON  DAMAGES. 

no  shelter,  in  a  cold  and  stormy  night,  and,  on  account  of  the 
state  of  health  of  the  parties,  in  their  attempts  to  find  shelter 
they  had  become  exhausted  and  perished,  it  would  seem  quite 
clear  that  the  defendant  ought  to  be  liable.  The  wrongful 
act  of  the  defendant  would  be  the  natural  and  direct  cause  of 
their  deaths,  and  it  would  seem  to  be  a  lame  excuse  for  the 
defendant,  that,  if  the  plaintiffs  had  been  of  more  robust 
health,  they  would  not  have  perished  or  have  suffered  any 
material  injury. 

The  defendant  is  not  excused  because  it  did  not  know  the 
state  of  health  of  Mrs.  Brown,  and  is  equally  responsible  for 
•the  consequences  of  the  walk  as  though  its  employees  had  full 
knowledge  of  that  fact.  This  court  expressly  so  held  in  the 
case  of  Stewart  v.  Ripon,  38  Wis.  591,  and  substantially  in 
the  case  of  Oliver  v.  Town  of  La  Valle,  36  Wis.  592. 

Upon  the  findings  of  the  jury  in  this  case,  it  appears  that 
the  defendant  was  guilty  of  a  wrong  in  putting  the  plaintiffs  off 
the  cars  at  the  place  they  did  ;  that  in  order  to  protect  them- 
selves from  the  effects  of  such  wrong  the)'  made  the  walk  to 
Mauston  ;  that  in  making  such  walk  they  were  guilty  of  no 
negligence,  but  were  compelled  to  make  it  on  account  of  the 
defendant's  wrongful  act ;  and  that,  on  account  of  the  peculiar 
state  of  health  of  Mrs.  Brown  at  the  time,  she  was  injured 
by  such  walk.  There  was  no  intervening  independent  cause 
of  the  injury,  other  than  the  act  of  the  defendant.  All  the 
acts  done  by  the  plaintiffs,  and  from  which  the  injury  flowed, 
were  rightful  on  their  part,  and  compelled  by  the  act  of  the 
defendant.  We  think,  therefore,  it  must  be  held  that  the 
injury  to  Mrs.  Brown  was  the  direct  result  of  the  defendant's 
negligence,  and  that  such  negligence  was  the  proximate  and 
not  the  remote  cause  of  the  injury,  within  the  decisions  above 
quoted.  We  can  see  no  reason  why  the  defendant  is  not 
equally  liable  for  an  injury  sustained  by  a  person  who  is 
placed  in  a  dangerous  position,  whether  the  injury  is  the  im- 
mediate result  of  a  wrongful  act,  or  results  from  the  act  of 
the  party  in  endeavoring  to  escape  from  the  immediate 
danger. 


BROWN  v.  CHICAGO,  MILWAUKEE  &  ST  P.  RAILWAY.     151 

When  by  the  negligence  of  another  a  person  is  threatened 
with  danger,  and  he  attempts  to  escape  such  threatened  danger 
by  an  act  not  culpable  in  itself  under  the  circumstances,  the 
person  guilty  of  the  negligence  is  liable  for  the  injury  re- 
ceived in  such  attempt  to  escape,  even  though  no  injury  would 
have  been  sustained  had  there  been  no  attempt  to  escape  the 
threatened  danger.  This  was  so  held,  and  we  think  properly, 
in  the  case  of  a  passenger  riding  upon  a  stage-coach,  who, 
supposing  the  coach  would  be  overturned,  jumped  therefrom 
and  was  injured,  although  the  coach  did  not  overturn,  and 
would  not  have  done  so  had  the  passenger  remained  in  his 
seat.  The  passenger  acted  upon  appearances,  and,  not  hav- 
ing acted  negligently,  it  was  held  that  he  could  recover ;  it 
being  shown  that  the  coach  was  driven  negligently  at  the 
time,  which  negligence  produced  the  appearance  of  danger. 
Jones  v.  Boyce,  1  Stark.  493.  The  ground  of  the  decision  is 
very  aptly  and  briefly  stated  by  Lord  Ellenborough  in  the 
case  as  follows  :  "  If  I  place  a  man  in  such  a  situation  that 
he  must  adopt  a  perilous  alternative,  I  am  responsible  for  the 
consequences." 

So,  in  the  case  at  bar,  the  defendant,  by  its  negligence, 
placed  the  plaintiffs  in  a  position  where  it  was  necessary  for 
them  to  act  to  avoid  the  consequences  of  the  wrongful  act  of 
the  defendant,  and,  acting  with  ordinary  prudence  and  care 
to  get  themselves  out  of  the  difficulty  in  which  they  had  been 
placed,  they  sustained  injury.  Such  injury  can  be,  and  is, 
traced  directly  to  the  defendant's  negligence  as  its  cause ; 
and  it  is  its  proximate  cause,  within  the  rules  of  law  upon 
that  subject.  The  true  meaning  of  the  maxim,  causa proxima 
non  remota  spectatur,  is  probably  as  well  defined  by  the  late 
Chief  Justice  Dixon  in  the  case  of  Kellogg  v.  Railway  Co., 
26  Wis.  223,  as  by  any  other  judge  or  court.  He  states  it  as 
follows  :  "  An  efficient,  adequate  cause  being  found,  must  be  ^ 
considered  the  true  cause,  unless  some  other  cause  not  inci- 
dent to  it,  but  independent  of  it,  is  shown  to  have  intervened 
between  it  and  the  result."  .  .  . 

There  is,  I  think,  but  one  case  cited  by  the  learned  counsel 


152  CASES   ON  DAMAGES. 

for  the  appellant  which  appears  to  be  in  direct  conflict  with 
this  view  of  the  case,  except  those  which  relate  to  breaches  of 
contract,  and  that  is  the  Pullman  Palace  Car  Co.  v.  Barker, 
4  Col.  344.  This  case  is,  we  think,  unsustained  by  authority, 
and  is  in  direct  conflict  with  the  decisions  of  this  court  in  the 
cases  of  Stewart  v.  Ripon  and  Oliver  v.  Town  of  La  Valle, 
supra.  This  decision  is,  it  seems  to  me,  supported  by  the 
principles  of  neither  law  nor  humanity.  It  in  effect  says  that, 
if  an  individual  unlawfully  compels  a  sick  and  enfeebled  per- 
son to  expose  himself  to  the  cold  and  storm  to  escape  worse 
consequences  from  his  wrongful  act,  he  cannot  recover  dam- 
ages from  the  wrong-doer,  because  it  was  his  sick  and  enfeebled 
condition  which  rendered  his  exposure  injurious.  Certainly 
such  a  doctrine  does  not  commend  itself  to  those  kinder  feel- 
ings which  are  common  to  humanity,  and  I  know  of  no  other 
case  which  sustains  its  conclusions. 

Judgment  affirmed. 
Cole,  C.J.,  and  Lyon,  J.,  dissent. 


SQUIRE  v.  WESTERN  UNION  TELEGRAPH  CO. 

Massachusetts,  1867.     98  Mass.  232. 

Tort  for  neglect  to  deliver  a  telegraphic  message  seasonably. 

At  the  trial  in  the  Superior  Court  these  facts  appeared  :  The 
defendants  were  a  corporation  established  under  the  laws  of 
New  York,  having  a  line  of  electric  telegraph  to  Buffalo  from 
Albany,  where  it  connected  with  a  line  of  the  American  Tele- 
graph Compan}r  (a  distinct  corporation),  which  ran  from 
Albany  to  Boston.  The  plaintiffs  were  pork  dealers  at  Bos- 
ton. On  March  19,  1866,  the  firm  of  Metcalf  &  Cushing, 
pork  dealers  at  Buffalo,  having  on  hand  two  hundred  and  fifty 
dressed  hogs,  wrote  to  the  plaintiffs  by  mail,  offering  to  sell 
the  lot,  and  asking  them  to  reply  by  telegraph  how  much  they 
would  give  for  it.  The  plaintiffs  replied  by  telegraph  on 
Saturday,  March  24,  naming  a  price  which  they  would  pay 


SQUIRE   v.   WESTERN  UNION  TELEGRAPH  CO.      153 

for  the  lot  delivered  at  Boston.  Metcalf  &  Cushing  answered 
bj  telegraph,  declining  to  sell  for  that,  but  naming  another 
price  which  they  would  accept  for  the  lot  delivered  in  the  cars 
at  Buffalo.  Upon  receiving  this  offer,  the  plaintiffs  prepared  a 
reply  as  follows  :  "  Will  take  your  hogs  at  your  offer  ;  our  man 
will  be  there  Tuesday  morning."  .  .  .  This  reply,  addressed 
to  "  Metcalf  &  Cushing,  Buffalo,  N.Y.,"  and  dated  "Boston, 
March  24,  1866,"  the  plaintiffs  delivered  at  the  office  of  the 
American  Telegraph  Company  in  Boston,  about  half  past  six 
o'clock  on  Saturday  evening,  for  transmission  as  an  unre- 
peated  message  not  specially  insured  ;  and  at  the  same  time 
they  paid  to  the  American  Telegraph  Company  the  price  for 
sending  it  the  whole  way  to  Buffalo.  That  company  immedi- 
ately transmitted  the  body  of  the  message  (not  including  the 
printed  terms)  to  the  defendants'  office  in  Albany  ;  and  the 
defendants  sent  it  from  Albany  to  their  office  in  Buffalo, 
where  it  arrived  about  nine  o'clock  Saturday  evening.  The 
defendants'  office  hours  at  Buffalo,  for  receiving  and  deliver- 
ing messages,  were  from  eight  o'clock  in  the  morning  till  ten 
o'clock  in  the  evening.  The  residences  and  place  of  business 
of  the  members  of  the  firm  of  Metcalf  &  Cushing  were  all 
within  ten  minutes'  walk  from  that  office  ;  and  the  defendants' 
agent  at  Buffalo  was  acquainted  with  them.  But,  through  his 
negligence,  the  message  was  not  delivered  on  the  evening  of  its 
arrival,  and  was  kept  in  the  office  during  Sunday  and  until 
Monday  morning,  when  it  was  delivered  to  Metcalf  &  Cush- 
ing at  twenty  minutes  past  eleven  o'clock.  Until  eleven 
o'clock  Metcalf  &  Cushing  had  been  willing  and  able  to  close 
the  bargain  with  the  plaintiffs  ;  but  at  that  hour,  not  having 
received  from  the  plaintiffs  any  reply,  they  sold  and  delivered 
the  hogs  to  another  party.1 

Bigelow,  C.J.  A  party  who  has  failed  to  fulfil  a  contract 
cannot  be  held  liable  for  remote,  contingent,  and  uncertain 
consequences,  or  for  speculative  or  possible  results  which  may 
have  ensued  on  his  breach  of  duty,  although  they  may  be 
traceable  to  that  cause.     The  reason  is,  that  damages  of  such 

1  Part  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


154  CASES  ON  DAMAGES. 

a  nature  are  not  the  natural  or  necessary  incidents  of  a  con- 
tract, and  cannot  be  deemed  to  have  been  within  the  contem- 
plation of  parties  when  they  agreed  together.  A  rule  of 
damages  which  should  embrace  within  its  scope  all  the  conse- 
quences which  might  be  shown  to  have  resulted  from  a  failure 
or  omission  to  perform  a  stipulated  duty  or  service  would  be 
a  serious  hindrance  to  the  operations  of  commerce  and  to 
the  transaction  of  the  common  business  of  life.  The  effect 
would  often  be  to  impose  a  liability  wholly  disproportionate 
to  the  nature  of  the  act  or  service  which  a  party  had  bound 
himself  to  perform  and  to  the  compensation  paid  and  received 
therefor.  The  practical  rule,  founded  on  a  wise  policy,  and 
at  the  same  time  consistent  with  good  sense  and  sound  equity, 
is  that  a  party  can  be  held  liable  for  breach  of  a  contract  only 
for  such  damages  as  are  the  natural  or  necessary,  and  the 
immediate  and  direct  results  of  the  breach,  —  such  as  might 
properly  be  deemed  to  have  been  in  contemplation  of  the 
parties  when  the  contract  was  entered  into,  —  and  that  all 
remote,  speculative,  and  uncertain  results,  as  well  as  possible 
profits  and  advantages  and  other  like  consequences  which 
might  have  arisen  from  the  fulfilment  of  the  contract  must  be 
excluded,  as  forming  no  just  or  legitimate  basis  on  which  to 
determine  the  extent  of  the  injury  actually  caused  by  a  breach. 
Fox  v.  Harding,  7  Cush.  516.  Cutting  v.  Grand  Trunk  Rail- 
way Co.,  13  Allen,  381-384,  and  cases  cited.  In  the  latter 
case  it  was  held  that  a  carrier  who  had  negligently  delayed  to 
transport  and  deliver  goods  intrusted  to  him,  was  liable  in 
damages  for  the  difference  in  their  value  at  the  time  when 
and  place  where  they  ought  to  have  been  delivered,  and  their 
market  value  at  the  same  place  on  the  day  when  they  were 
delivered.  This  was  held  to  be  the  measure  of  damages,  be- 
cause such  a  change  in  value  was  the  direct  result  of  the 
delay  in  performing  the  contract,  and  might  well  be  supposed 
to  have  been  in  contemplation  of  the  parties  when  the  con- 
tract was  made.  We  can  see  no  reason  why  an  analogous 
rule  is  not  applicable  to  the  case  before  us.  The  defendants 
as  a  contracting  party  are  liable  for  the  injury  actually  caused 


SQUIRE   v.  WESTERN  UNION  TELEGRAPH  CO.      155 

by  their  breach  of  duty.  There  is  nothing  in  the  nature  of 
the  business,  which  they  undertake  to  carry  on,  that  should 
exempt  them  from  making  compensation  for  an}'  neglect  or 
default  on  their  part.  Ellis  v.  American  Telegraph  Co.,  13 
Allen,  226.  The  only  question  then  is  as  to  the  effect  of  the 
application  of  the  general  rule  of  damages  already  stated  to 
the  contract  between  the  parties.  This  necessarily  depends 
on  the  subject-matter.  The  defendants  undertook  to  trans- 
mit a  message  which  on  its  face  purported  to  be  an  acceptance 
of  an  offer  for  the  sale  of  merchandise.  The  agreement  was 
to  transmit  and  deliver  it  with  reasonable  diligence  and  de- 
spatch, having  reference  to  the  ordinary  mode  of  performing 
similar  service  by  persons  engaged  in  the  same  business.  The 
natural  consequence  of  a  failure  to  fulfil  the  contract  was 
that  the  party  to  whom  the  message  was  addressed,  not 
receiving  a  reply  to  his  offer  to  sell  the  merchandise  in  due 
season,  would  dispose  of  it  to  another  person  ;  that  the  plain- 
tiff might  be  unable  to  procure  an  article  of  like  kind  and 
quality  at  the  same  price,  and  in  order  to  obtain  it  would  be 
obliged  to  pa}7  a  higher  price  for  it  in  the  market  than  he 
would  have  paid  if  the  prior  contract  for  its  purchase  had 
been  completed  by  the  seasonable  delivery  of  his  message  by 
the  defendants.  The  sum  therefore  which  would  compensate 
the  plaintiffs  for  the  loss  and  injury  sustained  by  them  would 
be  the  difference,  if  any,  in  the  price  which  they  agreed  to 
pay  for  the  merchandise  by  the  message  which  the  defendants 
undertook  to  transmit,  if  it  had  been  duly  and  seasonably 
delivered  in  fulfilment  of  their  contract,  and  the  sum  which 
the  plaintiffs  would  have  been  compelled  to  pay  at  the  same 
place  in  order  b}r  the  use  of  due  diligence  to  have  purchased 
the  like  quantity  and  quality  of  the  same  species  of  merchan- 
dise. The  case  must  be  tried  anew,  and  if  it  is  found  that  the 
defendants  did  not  fulfil  their  contract,  the  damages  must  be 
assessed  according  to  the  rule  above  stated. 

Exceptions  sustained, 


156  CASES  ON  DAMAGES. 

WESTERN  UNION  TELEGRAPH  CO.  v.  HYER. 

Florida,  1886.     22  Fla.  637. 

The  appellees,  ship-brokers,  residing  in  Pensacola,  having 
been  engaged  by  a  customer  to  charter  a  vessel  to  cany  a 
cargo  of  lumber  from  Pensacola  to  the  United  Kingdom,  sent 
a  telegram  to  their  correspondent  in  Barbadoes,  making  an 
offer  for  the  charter  of  a  vessel.  The  offer  was  accepted,  and 
a  telegram  sent  appellees,  which  was  received  at  the  defend- 
ant company's  office  in  Pensacola  the  next  day,  but  which 
was  never  delivered  to  appellees.  Their  correspondent  in 
Barbadoes,  as  their  agent,  signed  the  usual  charter-party 
for  appellees.  Not  receiving  an  answer  to  their  despatch, 
they  told  their  customer  that  they  had  failed  to  charter  the 
vessel,  whereupon  he  chartered  another.  Two  weeks  after- 
wards the  vessel  came  to  Pensacola,  as  per  the  charter-party 
signed  by  their  agent  in  Barbadoes.  They  were  compelled  to 
recharter  it  at  a  loss.     All  the  despatches  were  in  cipher.1 

McWhorter,  C.J.2  The  courts  in  New  York,  Minnesota, 
Maryland,  Wisconsin,  Massachusetts,  Nevada,  and  Maine, 
following  the  case  of  Hadley  v.  Baxendale,  hold  that  only 
nominal  damages  can  be  recovered  from  the  company  under- 
taking to  send  the  telegram,  unless  the  sender  should  inform 
the  operator  of  the  special  circumstances  which  constituted  its 
importance,  and  the  need  of  its  correct  and  prompt  transmis- 
sion. .  .  .  The  decision  in  Hadley  v.  Baxendale  was  proper 
and  suited  to  the  facts  before  the  court,  but  an  attempt  to 
extend  it  to  such  cases  as  this  would  be  productive  of  great  in- 
justice. The  telegraphic  invention  has  made  the  system  the 
means  of  communication  between  all  civilized  countries  on 
the  globe  for  a  large  part  of  the  transactions  and  communica- 
tion that  prior  to  its  invention  were  conducted  by  writing  or 

1  This  statement  of  facts,  excepting  the  last  clause,  is  taken  from  the 
syllabus  prepared  by  the  court. 
8  Part  of  the  opinion  is  omitted. 


WESTERN   UNION  TELEGRAPH   CO.   v.   HYER.       157 

by  special  messenger.  No  man  can  enumerate  the  vast  num- 
ber of  subjects  of  treaty  and  intercourse  that  the  complicated 
relations  of  mankind  require  its  agency  to  accomplish.  It  can 
safely  be  said,  however,  that  the  larger  part  of  all  messages 
sent  are  of  a  commercial  or  business  nature  which  suggest 
value.  The  requirements  of  friendship  or  pleasure  can  await 
other  means  of  less  celerity  and  less  expense.  If  this  be  true, 
why  should  the  law  assume  that  as  a  rule  all  messages  sent 
over  it  are  unimportant,  and  that  an  important  one  is  an  ex- 
ception, of  which  the  operator  is  to  be  informed?  Whatever 
may  be  the  rules  of  this  particular  defendant  company,  if  they 
have  any,  there  are  none  set  forth  in  the  record.  Whether, 
therefore,  its  rules  are  reasonable,  or  whether  it  can  limit  its 
liability  by  proper  rules,  when  shown  to  have  been  known  to 
its  patrons,  is  in  no  sense  involved  in  this  opinion. 

The  common  carrier  charges  different  rates  of  freight  for 
different  articles,  according  to  their  bulk  and  value,  and  their 
respective  risks  of  transportation,  and  provides  different 
methods  for  the  transportation  of  each.  It  is  not  shown  here 
that  the  defendant  company  had  any  scale  of  prices  which 
were  higher  or  lower  as  the  importance  of  the  despatch  was 
great  or  small.  It  cannot  be  said,  then,  that  for  this  reason 
the  operator  should  be  informed  of  its  importance,  when  it 
made  no  difference  in  the  charge  of  transmission.  It  is  not 
shown  that  if  its  importance  had  been  disclosed  to  the 
operator,  that  he  was  required,  by  the  rules  of  the  company, 
to  scud  the  message  out  of  the  order  in  which  it  came  to  the 
office,  with  reference  to  other  messages  awaiting  transmis- 
sion ;  that  he  was  to  use  any  extra  degree  of  skill,  and  differ- 
ent method  or  agency,  for  sending  it,  from  the  time,  the 
skill  used,  the  agencies  employed,  or  the  compensation  de- 
manded for  sending  an  unimportant  despatch  ;  or  that  it  would 
aid  the  operator  in  its  transmission.  For  what  reason,  then, 
could  he  demand  information  that  was  in  no  way  whatever  to 
affect  his  manner  of  action,  or  impose  on  him  any  additional 
obligation?  It  could  only  operate  on  him  persuasively  to  per- 
form a  duty  for  which  he  had  been  paid  the  price  he  de- 


158  CASES   ON  DAMAGES. 

manded,  which  in  consideration  thereof  he  had  agreed  to 
perform,  and  which  the  law,  in  consideration  of  his  promise, 
and  the  reception  of  the  consideration  therefor,  had  already 
enjoined  on  him.   .   .  . 

It  is  of  no  consequence  whether  the  despatch  is  in  plain 
English  or  in  cipher,  provided  such  cipher  is  written  in  the 
letters  of  the  English  alphabet. 

Raney,  J.,  dissented.  Judgment  affirmed} 


POSTAL    TELEGRAPH    CABLE    CO.    v.    LATHROP. 

Illinois,  1890.     131  111.  575. 

Wilkin,  J.  It  is  earnestly  contended  by  counsel  for  ap- 
pellant, that  the  messages,  "  Please ,  buy,  in  addition  to 
thousand  August,  one  thousand  cheapest  month,"  and  "Put 
stop  order  on  five  thousand  December,  at  seventeen  cents," 
were,  unexplained,  meaningless  and  unintelligible  to  the 
operator  of  appellant  who  transmitted  them,  and  therefore, 
as  in  case  of  cipher  despatches,  no  special  or  consequential 
damages  could  have  been  reasonably  contemplated  by  the 
parties  when  thej'  were  sent,  and  hence  none  can  be  re- 
covered in  this  suit.  This  position  is  based  on  the 
rule  of  damages  announced  in  Hadley  v.  Baxendale,  and 
followed  generally  in  this  country,  as  well  as  England. 
In  any  view  of  that  rule,  as  applied  to  this  case,  the  instruc- 
tion is  too  narrow.  The  evidence  shows  that  at  the  time  of 
sending  these  despatches,  appellees  were,  and  had  for  some 
time  prior  thereto  been,  engaged  in  the  business  of  jobbers 
in  coffee,  tea,  and  sugar  in  the  cit}-  of  Chicago ;  that  Cross- 
man  &  Bro.  were  commission  merchants  in  New  York,  buying 
and  selling  coffee,  rubber,  and  hides,  on  commission ;  that 
appellant  had  a  branch  office  near  the  place  of  business  of 
appellees,  from  which  the  messages  in  question  were  sent, 
and  had  frequently  sent  others  pertaining  to  their  business. 

1  This  case  was  overruled  (Mabry,  J.,  dissenting)  by  W.  U.  T.  Co,  v. 
Wilson,  32  Fla.  527. 


POSTAL  TELEGRAPH  CABLE   CO.  v.  LATHROP.      159 

It  also  tends  to  show,  that  from  business  transactions  In 
New  York  between  appellant  and  the  firm  of  Crossman  & 
Bro.,  appellant  knew  the  business  in  which  the  latter  firm 
was  engaged.  It  is  in  proof,  that  during  the  month  of  June, 
1887,  and  prior  to  the  first  mistake  complained  of,  a  number 
of  despatches  were  sent  by  appellees  to  Crossman  &  Bro. 
from  appellant's  Chicago  office.  One  on  the  13th  read : 
"  Please  wire  us  to-day  whether  you  do  or  do  not  execute 
our  order  for  five  thousand  bags,  as  we  must  place  it  else- 
where if  you  decline."  Another  of  the  same  date  refers  to 
"  five  thousand  bags."  It  must  at  least  be  conceded  that 
there  is  evidence  tending  to  show,  that  from  their  previous 
dealings  appellant  knew,  or  might  by  reasonable  diligence 
have  understood,  the  purport  of  these  messages.  Therefore, 
in  determining  whether  or  not  the  messages  were  sufficient 
to  inform  the  operator  of  their  meaning,  and  of  the  possible 
risk  of  loss  to  appellees  by  a  mistake  in  transmitting  them, 
the  jury  should  have  been  left  free  to  consider  all  the  facts 
and  circumstances  proved  in  the  case,  bearing  on  that  ques- 
tion, whereas  the  instruction  limits  the  inquiry  to  that  which 
appears  in  the  despatches  themselves,  and  to  such  facts  as 
may  have  been  disclosed  by  the  plaintiffs  to  the  defendant  or 
its  agent  at  the  time  they  were  sent.  See  2  Thompson  on 
Negligence,  p.  857. 

On  the  question  as  to  how  far  mere  indefiniteness  in  the 
language  of  a  message  will  defeat  a  recovery  for  consequen- 
tial damages  against  a  telegraph  company,  the  decisions  can- 
not be  said  to  be  harmonious.  Counsel  for  appellant  con- 
tends that  the  better  line  of  authorities  sustains  the  rule 
announced  in  this  instruction,  viz.,  that  the  operator  who 
transmits  a  message  must  be  able  to  understand  its  meaning 
as  to  quantit}-,  quality,  price,  etc.,  as  the  sender  and  party  to 
whom  it  is  sent  themselves  understood  it,  otherwise  it  is  said 
he  cannot  reasonably  be  supposed  to  have  contemplated 
damages  as  the  probable  consequence  of  a  failure  to  cor- 
rectly transmit  it.  While  some  of  the  cases  cited  go  to  that 
extent,  especially  where  the  message  is  in  cipher,  another 


160  CASES   OX   DAMAGES. 

line  of  decisions,  and,  we  think,  founded  on  the  better 
reasons,  hold  that  where  enough  appears  in  the  message 
to  show  that  it  relates  to  a  commercial  business  trans- 
action between  the  correspondents,  it  is  sufficient  to  charge 
the  company  with  damages  resulting  from  its  negligent 
transmission. 

In  United  States  Telegraph  Co.  v.  Wenger,  55  Pa.  St.  262, 
a  message  read,  "  Buy  fifty  (50)  Northwestern,  fifty  (50) 
Prairie  du  Chien,  limit  forty-five  (45)."  There  was  a  delay 
by  the  telegraph  company  in  its  delivery,  resulting  in  a  loss 
to  the  sender  on  account  of  the  advance  in  price  of  Chicago 
and  Northwestern  Railway  Company  stock,  and  the  Mil- 
waukee and  Prairie  du  Chien  Railway  Company  stock, 
which  the  message  was  intended  to  order  purchased.  The 
Supreme  Court  of  Pennsylvania  sustained  a  recovery,  say- 
ing: "The  despatch  was  such  as  to  disclose  the  nature 
of  the  business  to  which  it  related,  and  that  loss  might  be 
very  likely  to  occur  if  there  was  a  want  of  promptitude  in 
transmitting  it,  containing  the  order." 

In  Tyler  v.  Western  Union  Telegraph  Co.,  60  111.  421,  the 
message  was,  "  Sell  one  hundred  (100)  Western  Union  ; 
answer  price."  The  message  as  delivered  read:  "Sell  one 
thousand  (1000),"  instead  of  "one  hundred  (100)."  The 
message  was  intended  as  an  order  to  sell  one  hundred  shares 
of  stock  in  Western  Union  Telegraph  Company.  The  agent, 
obeying  the  order  as  delivered,  sold  one  thousand  shares  of 
said  stock,  and  to  fill  the  order  was  compelled  to  buy  nine 
hundred  (900)  shares.  We  held  that  the  plaintiff  was  enti- 
tled to  recover  the  difference  between  the  price  for  which  the 
shares  of  stock  were  sold  and  that  which  he  was  compelled  to 
pay  for  those  purchased.  On  the  question  as  to  the  sufficiency 
of  the  despatch  to  inform  the  agent  of  the  transaction  to  which 
it  referred,  so  as  to  charge  the  telegraph  company  with  result- 
ing damages,  the  rule  announced  in  United  States  Telegraph 
Co.  v.  Wenger,  svpra,  was  approved,  and  it  was  held  that  the 
despatch  disclosed  the  nature  of  the  business  as  fully  as  the 
case  demanded.  On  a  second  appeal,  —  74  111.  168,  —  by 
general  language  the  decision  is  re-affirmed. 


POSTAL  TELEGRAPH  CABLE  CO.  v.  LATHROP.      161 

In  Telegraph  Co.  v.  Griswold,  37  Ohio  St.  302,  a  despatch 
read,  "  Will  3-ou  give  one  fifty  for  twenty-five  hundred  at 
London  ;  answer  at  once,  as  I  have  only  till  to-night."  As 
delivered,  it  read  "  one  five,"  instead  of  "  one  fifty."  As 
written,  it  was  an  inquiry  whether  the  sendee  would  pay 
$1.50  in  gold  for  2500  bushels  of  flax  seed  at  London, 
Ontario,  the  parties  having  previously  corresponded  on  the 
subject.  The  sendee  replied  to  the  despatch  as  received, 
ordering  the  purchase,  and  he  recovered  from  the  telegraph 
company  the  difference  in  price.  On  appeal  to  the  Supreme 
Court,  it  was  contended,  as  it  is  here,  that  the  message  was 
indefinite,  and  therefore  the  recovery  below  unauthorized. 
But  the  court  said:  "It  appeared  upon  its  face  that  it 
related  to  a  business  transaction,  —  a  transaction  involving 
the  purchase  and  sale  of  property.  The  company  was  there- 
fore apprised  of  the  fact  that  a  pecuniary  loss  might  result 
from  an  incorrect  transmission  of  the  message.  Where  this 
appears,  there  is  no  such  obscurity  as  relieves  the  company 
from  liability  for  negligently  failing  to  transmit  and  deliver  a 
message  in  the  language  in  which  it  was  received." 

In  Man*  v.  Western  Union  Telegraph  Co.,  85  Tenn.  530,  a 
message  was  delivered  to  the  company  reading,  "  Buy  one 
hundred  shares  Memphis  and  Charlestown."  As  delivered, 
it  read,  "Buy  one  thousand  shares  Memphis  and  Charles- 
town."  The  recovery  for  consequential  damages  was  sus- 
tained, the  Supreme  Court  of  that  State  saying:  "This 
message  was  so  written  that  the  slightest  reflection  would 
enable  the  operator  who  undertook  its  transmission,  to  see 
its  commercial  importance,  and  put  him  on  his  guard  against 
error." 

In  Western  Union  Telegraph  Co.  v.  Blanchard,  68  Ga.  299, 
the  message  sent  read,  "  Cover  two  hundred  September,  one 
hundred  August."  B3'  an  error  in  its  transmission,  as  re- 
ceived it  read  "two  hundred  August,"  instead  of  "one 
hundred."  As  sent,  it  was  an  order  to  sell  one  hundred 
bales  of  cotton  for  August  delivery,  and   two  hundred  for 

September  delivery.    The  agent  sold  two  hundred  bales  for 

11 


162  CASES  ON  DAMAGES. 

August,  and  plaintiff  was  compelled  to  buy  one  hundred  at  a 
loss  in  order  to  meet  the  sale.  A  recovery  for  this  loss  was 
sustained  by  the  Supreme  Court  of  that  State  in  the  following 
language  :  "  As  to  the  fifth  ground  in  the  request  to  charge, 
we  do  not  see  but  what  the  message  sought  to  be  transmitted 
was,  according  to  the  proof,  an  ordinary  commercial  message, 
intelligible  to  those  engaged  in  cotton  dealing,  and  we  can 
see  no  special  purpose  intended  by  the  sender  which  was 
unknown  to  the  company,  so  as  to  vary  the  rule  of  liability. 
There  was  at  least  enough  known  to  show  it  was  a  com- 
mercial message  of  value,  and  that  is  sufficient."  See,  also, 
Squire  v.  Union  Telegraph  Co.,  98  Mass.  232;  Pepper  v. 
Western  Union  Telegraph  Co.,  4  Tenn.  660  ;  Sutherland  on 
Damages. 

All  the  cases  which  hold  that  a  telegraph  company  is  not 
liable  for  consequential  damages  for  a  failure  to  transmit  a 
despatch  as  received,  on  the  ground  of  indefiniteness  or 
obscurity  in  the  language  of  the  message,  do  so  upon  the 
ground  that  unless  the  agent  of  the  company  may  reasonably 
know  from  the  message  itself,  or  is  informed  by  other  means, 
that  it  relates  to  a  matter  of  business  importance,  he  cannot 
be  supposed  to  have  contemplated  damages  as  a  result  from 
his  failure  to  send  it  as  written,  as  in  the  case  of  cipher 
despatches.  The  Supreme  Court  of  Wisconsin,  in  Condee 
v.  Western  Union  Telegraph  Co.,  34  Wis.  472,  say:  "  The 
operator,  who  represents  the  company,  and  may  for  this 
purpose  be  said  to  be  the  other  part}7  to  the  contract,  cannot 
be  supposed  to  look  upon  such  a  message  as  one  pertaining 
to  transactions  of  pecuniary  value  and  importance,  and  in 
respect  to  which  pecuniary  loss  or  damage  will  naturally 
arise  in  case  of  his  failure  or  omission  to  send  it.  It  may  be 
a  mere  item  of  news,  or  some  other  communication  of  a 
trifling  and  unimportant  character." 

It  is  clear  enough,  that,  applying  the  rule  in  Hadley  v. 
Baxendale,  a  recovery  cannot  be  had  for  a  failure  to  cor- 
rectly transmit  a  mere  cipher  despatch,  unexplained,  for 
the  reason  that  to  one  unacquainted  with  the  meaning  of  the 


POSTAL  TELEGRAPH  CABLE  CO.  v.  LATHROP.      163 

ciphers  it  is  wholly  unintelligible  and  nonsensical.  An 
operator  would,  therefore,  be  justifiable  in  saying  it  can 
contain  no  information  of  value  as  pertaining  to  a  business 
transaction,  and  a  failure  to  send  it,  or  a  mistake  in  its 
transmission,  can  reasonably  result  in  no  pecuniary  loss. 
The  messages  in  this  case,  however,  are  not  cipher  de- 
spatches. Their  language  is  plain  and  intelligible  to  every 
one  who  can  read,  so  far  as  they  purport  to  disclose  the 
business  to  which  they  relate.  The}'  are  abbreviations, 
and  clearly  indicate  that  they  relate  to  business  transactions 
between  the  sender  and  sendee.  The  first  message,  "  Please 
buy,  in  addition  to  thousand  August,  one  thousand  cheapest 
month,"  was  notice  to  the  agent  at  Chicago  that  appellees 
were  ordering  their  agents  in  New  York  to  purchase 
merchandise  for  them.  We  do  not  agree  with  counsel  in 
saying  that  it  might  as  well  be  construed  to  be  an  order 
"  for  a  thousand  toothpicks  or  a  thousand  papers  of  pins,  as 
anything  else."  Every  one  of  intelligence  knows  that  such 
articles  are  not  purchased  in  that  way.  Suppose,  however, 
that  the  agent  was  not  informed  as  to  the  quantity,  quality, 
and  value  of  the  merchandise  to  be  purchased,  by  the  mes- 
sage, would  that  justify  him  in  contemplating,  within  the 
rule  in  the  Hadley  case,  no  damages  as  a  result  of  his 
negligence  or  omission  of  duty  in  promptly  and  correctly 
sending  it  forward?  It  certainly  cannot  be  contended  that 
the  agent  must  be  informed  of  all  the  facts  and  circumstances 
pertaining  to  a  transaction  referred  to  in  a  telegram,  which 
are  known  by  the  parties  themselves,  to  make  his  company 
liable  for  more  than  nominal  damages.  If  it  should  be  so 
held,  the  telegraph  would  cease  to  be  of  practical  utility  in 
the  commercial  world. 

It  is  not  easy  to  state  a  case  in  which  it  can  be  said  the 
parties  contemplated,  at  the  time  of  contracting,  all  the 
damages  which  would  probably  result  from  a  failure  to  per- 
form the  contract.  We  think  the  reasonable  rule,  and  one 
well  sustained  by  authority,  is,  that  where  a  message,  as 
written,  read  in  the  light  of  well-known  usage  in  commercial 


164  CASES   ON   DAMAGES. 

correspondence,  reasonably  informs  the  operator  that  the 
message  is  one  of  business  importance,  and  discloses  the 
transaction  so  far  as  is  necessary  to  accomplish  the  purpose 
for  which  it  is  sent,  the  company  should  be  held  liable  for 
all  the  direct  damages  resulting  from  a  negligent  failure  to 
transmit  it  as  written,  within  a  reasonable  time,  unless  such 
negligence  is  in  some  way  excused.  Under  this  rule,  both 
despatches,  as  presented  to  appellant's  operator,  were  suffi- 
ciently explicit  to  charge  it  with  the  loss  sustained  by 
appellees,  resulting  from  what  has  been  found  by  the  jury 
inexcusable  mistakes. 

Judgment  affirmed. 

PRIMROSE  v.   WESTERN   UNION  TELEGRAPH 
COMPANY. 

United  States  Supreme  Court,  1894.     154  U.  S.  1. 

This  was  an  action  on  the  case,  brought  Jan.  25,  1888, 
by  Frank  J.  Primrose,  a  citizen  of  Pennsylvania,  against  the 
Western  Union  Telegraph  Company,  a  corporation  of  New 
York,  to  recover  damages  for  a  negligent  mistake  of  the 
defendant's  agent  in  transmitting  a  telegraphic  message  from 
the  plaintiff  at  Philadelphia  to  his  agent  at  Waukeney  in  the 
State  of  Kansas. 

The  defendant  pleaded  :  1st,  not  guilty ;  2d,  that  the  mes- 
sage was  an  unrepeated  message,  and  was  also  a  cipher  and 
obscure  message,  and  therefore  by  the  contract  between  the 
parties  under  which  the  message  was  sent  the  defendant  was 
not  liable  for  the  mistake.1 

Gray,  J.  Under  any  contract  to  transmit  a  message  by 
telegraph,  as  under  any  other  contract,  the  damages  for  a 
breach  must  be  limited  to  those  which  may  be  fairly  con- 
sidered as  arising  according  to  the  usual  course  of  things 
from  the  breach  of  the  very  contract  in  question,  or  which 
both  parties  must  reasonably  have  understood  and  contem- 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


PRIMROSE   v.   WESTERN  UNION  TELEGRAPH  CO.     165 

plated,  when  making  the  contract,  as  likely  to  result  from  its 
breach.  This  was  directly  adjudged  in  Western  Union  Tel. 
Co.  v.  Hall,  124  U.  S.  444.  .  .  . 

In  Sanders  v.  Stuart,  which  was  an  action  by  commission 
merchants  against  a  person  whose  business  it  was  to  collect 
and  transmit  telegraph  messages,  for  neglect  to  transmit  a 
message  in  words  by  themselves  wholly  unintelligible,  but 
which  could  be  understood  by  the  plaintiffs'  correspondent  in 
New  York  as  giving  a  large  order  for  goods,  whereby  the 
plaintiffs  lost  profits,  which  they  would  otherwise  have  made 
by  the  transaction,  to  the  amount  of  £150,  Lord  Chief  Justice 
Coleridge,  speaking  for  himself  and  Lords  Justices  Brett  and 
Lindley,  said:  "Upon  the  facts  of  this  case  we  think  that 
the  rule  in  Hadley  v.  Baxendale  applies,  and  that  the  dam- 
ages recoverable  are  nominal  only.  It  is  not  necessary  to 
decide,  and  we  do  not  give  any  opinion  how  the  case  might 
be,  if  the  message,  instead  of  being  in  language  utterly  unin- 
telligible, had  been  conveyed  in  plain  and  intelligible  words. 
It  was  conveyed  in  terms  which,  as  far  as  the  defendant  was 
concerned,  were  simple  nonsense.  For  this  reason,  the  sec- 
ond portion  of  Baron  Alderson's  rule  clearly  applies.  No 
such  damages  as  above  mentioned  could  be  '  reasonably  sup- 
posed to  have  been  in  the  contemplation  of  both  parties,  at 
the  time  the}-  made  the  contract,  as  the  probable  result  of 
the  breach  of  it ; '  for  the  simple  reason  that  the  defendant, 
at  least,  did  not  know  what  his  contract  was  about,  nor  what, 
nor  whether  any,  damage  would  follow  from  the  breach  of  it. 
And  for  the  same  reason,  viz.,  the  total  ignorance  of  the 
defendant  as  to  the  subject-matter  of  the  contract  (an  igno- 
rance known  to,  and,  indeed,  intentionally  procured  by  the 
plaintiffs),  the  first  portion  of  the  rule  applies  also  ;  for  there 
are  no  damages  more  than  nominal  which  can  '  fairly  and 
reasonabby  be  considered  as  arising  naturally,  i.  e.,  according 
to  the  usual  course  of  things,  from  the  breach'  of  such  a  con- 
tract as  this."  1  C.  P.  D.  326,  328  ;  45  Law  Journal  (n.  s.) 
C.  P.  682,  684. 

In    United    States    Telegraph    Company   v.   Gildersleve, 


166  CASES  ON  DAMAGES. 

which  was  an  action  by  the  sender  against  a  telegraph 
company  for  not  delivering  this  message  received  by  it  in 
Baltimore,  addressed  to  brokers  in  New  York,  "  Sell  fifty 
(50)  gold,"  Mr.  Justice  Alvey,  speaking  for  the  Court  of 
Appeals  of  Maryland,  and  applying  the  rule  of  Hadley  v. 
Baxendale,  above  cited,  said:  "While  it  was  proved  that 
the  despatch  in  question  would  be  understood  among  brokers 
to  mean  fifty  thousand  dollars  of  gold,  it  was  not  shown,  nor 
was  it  put  to  the  jury  to  find,  that  the  appellant's  agents  so 
understood  it,  or  whether  they  understood  it  at  all.  4  Sell 
fifty  gold '  may  have  been  understood  in  its  literal  import,  if 
it  can  be  properly  said  to  have  any,  or  was  as  likely  to  be 
taken  to  mean  fifty  dollars,  as  fifty  thousand  dollars,  by  those 
not  initiated.  And  if  the  measure  of  responsibility  at  all  de- 
pends upon  a  knowledge  of  the  special  circumstances  of  the 
case,  it  would  certainly  follow  that  the  nature  of  this  despatch 
should  have  been  communicated  to  the  agent  at  the  time  it 
was  offered  to  be  sent,  in  order  that  the  appellant  might 
have  observed  the  precautions  necessary  to  guard  itself 
against  the  risk.  But  without  referrence  to  the  fact  as  to 
whether  the  appellant  had  knowledge  of  the  true  meaning 
and  character  of  the  despatch,  and  was  thus  enabled  to  con- 
template the  consequences  of  a  breach  of  the  contract,  the 
jury  were  instructed  that  the  appellee  was  entitled  to  recover 
to  the  full  extent  of  his  loss  by  the  decline  in  gold.  In  thus 
instructing  the  jury,  we  think  the  court  committed  error,  and 
that  its  ruling  should  be  reversed."  29  Maryland,  232,  251. 
In  Baldwin  v.  United  States  Tel.  Co.,  which  was  an  action 
by  the  senders  against  the  telegraph  company,  for  not  deliv- 
ering this  message,  "  Telegraph  me  at  Rochester  what  that 
well  is  doing,"  Mr.  Justice  Allen,  speaking  for  the  Court  of 
Appeals  of  New  York,  said  :  "  The  message  did  not  import 
that  a  sale  of  any  property,  or  any  business  transaction, 
hinged  upon  the  prompt  deliver}*  of  it,  or  upon  an}'  answer 
that  might  be  received.  For  all  the  purposes  for  which  the 
plaintiffs  desired  the  information,  the  message  might  as  well 
have  been  in  a  cipher,  or  in  an  unknown  tongue.     It  indi- 


PRIMROSE  v.   WESTERN  UNION  TELEGRAPH  CO.     167 

cated  nothing  to  put  the  defendant  upon  the  alert,  or  from 
which  it  could  be  inferred  that  any  special  or  peculiar  loss 
would  ensue  from  a  non-delivery  of  it.  Whenever  special  or 
extraordinar}'  damages,  such  as  would  not  naturally  or  ordi- 
narily follow  a  breach,  have  been  awarded  for  the  Hon-per- 
foriuance  of  contracts,  whether  for  the  sale  or  carriage  of 
goods,  or  for  the  delivery  of  messages  by  telegraph,  it  has 
been  for  the  reason  that  the  contracts  have  been  made  with 
reference  to  peculiar  circumstances  known  to  both,  and  the 
particular  loss  has  been  in  the  contemplation  of  both,  at  the 
time  of  making  the  contract,  as  a  contingency  that  might  fol- 
low the  non-performance."  "  The  despatch  not  indicating 
an}T  purpose,  other  than  that  of  obtaining  such  information  as 
an  owner  of  propert}'  might  desire  to  have  at  all  times  and 
without  reference  to  a  sale,  or  even  a  stranger  might  ask  for 
purposes  entirety  foreign  to  the  property  itself,  it  is  very 
evident  that,  whatever  may  have  been  the  special  purpose  of 
the  plaintiffs,  the  defendant  had  no  knowledge  or  means  of 
knowledge  of  it,  and  could  not  have  contemplated  either  a 
loss  of  a  sale,  or  a  sale  at  an  under  value,  or  any  other  dis- 
position of  or  dealing  with  the  well  or  any  other  property, 
as  the  probable  or  possible  result  of  a  breach  of  its  contract. 
The  loss  which  would,  naturally  and  necessarily,  result  from 
the  failure  to  deliver  the  message,  would  be  the  money  paid 
for  its  transmission,  and  no  other  damages  can  be  claimed 
upon  the  evidence  as  resulting  from  the  alleged  breach  of 
duty  by  the  defendant."  45  N.  Y.  744,  749,  750,  752.  See 
also  Hart  v.  Direct  Cable  Co.,  86  N.  Y.  633. 

The  Supreme  Court  of  Illinois,  in  Tyler  v.  Western 
Union  Tel.  Co.,  took  notice  of  the  fact  that  in  that 
case  "  the  despatch  disclosed  the  nature  of  the  business  as 
fully  as  the  case  demanded"  60  Illinois,  434.  And  in  the 
recent  case  of  Postal  Tel.  Co.  v.  Lathrop,  the  same  court 
said  :  "It  is  clear  enough  that,  applying  the  rule  in  Hadley  ' 
v.  Baxendale,  supra,  a  recovery  cannot  be  had  for  a  failure 
to  correctly  transmit  a  mere  cipher  despatch  unexplained,  for 
the  reason  that  to  one  unacquainted  with  the  meaning  of  the 


168  CASES  ON  DAMAGES. 

ciphers  it  is  wholly  unintelligible  and  nonsensical.  An 
operator  would,  therefore,  be  justifiable  in  saying  that  it  can 
contain  no  information  of  value  as  pertaining  to  a  business 
transaction ;  and  a  failure  to  send  it,  or  a  mistake  in  its 
transmission,  can  reasonably  result  in  no  pecuniary  loss." 
131  Illinois,  575,  585. 

The  same  rule  of  damages  has  been  applied,  upon  failure 
of  a  telegraph  company  to  transmit  or  deliver  a  cipher  mes- 
sage, in  one  of  the  Wisconsin  cases  cited  by  the  plaintiff, 
and  in  many  cases  in  other  courts.  Candee  v.  Western 
Union  Tel.  Co.,  34  Wisconsin,  471,  479-481  ;  Beaupre  v. 
Pacific  &  Atlantic  Tel.  Co.,  21  Minnesota,  155;  Mackay  v. 
Western  Union  Tel.  Co.,  16  Nevada,  222;  Daniel  v.  West- 
ern Union  Tel.  Co.,  61  Texas,  452 ;  Cannon  v.  Western 
Union  Tel.  Co.,  100  No.  Car.  300;  Western  Union  Tel.  Co. 
v.  Wilson,  32  Florida,  527 ;  Behm  v.  Western  Union  Tel. 
Co.,  8  Bissell,  131  ;  Western  Union  Tel.  Co.  v.  Martin,  9 
Bradwell,  587  ;  Abeles  v.  Western  Union  Tel.  Co.,  37 
Missouri  App.  554;  Kinghorne  v.  Montreal  Tel.  Co.,  18 
Upper  Canada  Q.  B.  60,  69. 

In  the  present  case,  the  message  was,  and  was  evidently 
intended  to  be,  wholly  unintelligible  to  the  telegraph  com- 
pany or  its  agents.  They  were  not  informed,  by  the  mes- 
sage or  otherwise,  of  the  nature,  importance,  or  extent  of  the 
transaction  to  which  it  related,  or  of  the  position  which  the 
plaintiff  would  probably  occup}'  if  the  message  were  correctly 
transmitted.  Mere  knowledge  that  the  plaintiff  was  a  wool 
merchant,  and  that  Toland  was  in  his  emplo}-,  had  no  ten- 
dency to  show  what  the  message  was  about.  According  to 
an}r  understanding  which  the  telegraph  company  and  its 
agents  had,  or  which  the  plaintiff  could  possibby  have  sup- 
posed that  they  had,  of  the  contract  between  these  parties, 
the  damages  which  the  plaintiff  seeks  to  recover  in  this 
action,  for  losses  upon  wool  purchased  by  Toland,  were  not 
such  as  could  reasonably  be  considered,  either  as  arising, 
according  to  the  usual  course  of  things,  from  the  supposed 
breach  of  the  contract  itself,  or  as  having  been  in  the  con- 


PRIMROSE   v.   WESTERN  UNION  TELEGRAPH   CO.      1G9 

templation  of  both  parties,  when  they  made  the  contract,  as 
a  probable  result  of  a  breach  of  it. 

In  any  view  of  the  case,  therefore,  it  was  rightly  ruled  by 
the  Circuit  Court  that  the  plaintiff  could  recover  in  this 
action  no  more  than  the  sum  which  he  had  paid  for  sending 
the  message.  Judgment  affirmed. 

Fuller,  C.J.,  and  Harlan,  J.,  dissented. 


CHAPTER  VI. 

AVOIDABLE    CONSEQUENCES. 


LOKER  v.  DAMON. 

Massachusetts,  1835.     17  Pick.  284. 

Trespass  quare  clausum.  The  declaration  set  forth,  that 
the  defendants  destroyed  and  carried  away  ten  rods  of  the 
plaintiffs  fences,  in  consequence  of  which  certain  cattle 
escaped  through  the  breach  and  destroyed  the  plaintiff's 
grass,  and  that  he  thereby  lost  the  profits  of  his  close  from 
September,  1832,  to  July,  1833.1 

Shaw,  C.  J.  The  court  are  of  opinion,  that  the  direction  re- 
specting damages  was  right.  In  assessing  damages,  the  direct 
and  immediate  consequences  of  the  injurious  act  are  to  be  re- 
garded, and  not  remote,  speculative,  and  contingent  conse- 
quences, which  the  party  injured  might  easily  have  avoided 
by  his  own  act.  Suppose  a  man  should  enter  his  neighbor's 
field  unlawfully,  and  leave  the  gate  open ;  if,  before  the 
owner  knows  it,  cattle  enter  and  destroy  the  crop,  the  tres- 
passer is  responsible.  But  if  the  owner  sees  the  gate  open 
and  passes  it  frequently,  and  wilfull}*  and  obstinately  or 
through  gross  negligence  leaves  it  open  all  summer,  and 
cattle 'get  in,  it  is  his  own  folly.  So  if  one  throw  a  stone 
and  break  a  window,  the  cost  of  repairing  the  window  is  the 
ordinary  measure  of  damage.  But  if  the  owner  suffers  the 
window  to  remain  without  repairing  a  great  length  of  time 
after  notice  of  the  fact,  and  his  furniture,  or  pictures,  or 
other  valuable  articles,  sustain  damage,  or  the  rain  beats  in 
and  rots  the  window,  this  damage  would  be  too  remote. 
1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. . 


WOLF  v.  STUDEBAKER.  171 

We  think  the  jurjT  were  rightly  instructed,  that  as  the  tres- 
pass consisted  in  removing  a  few  rods  of  fence,  the  proper 
measure  of  damage  was  the  costs  of  repairing  it,  and  not  the 
loss  of  a  subsequent  year's  crop,  arising  from  the  want  of 
such  fence.  I  do  not  mean  to  say,  that  other  damages  may 
not  be  given  for  injury  in  breaking  the  plaintiff's  close,  but  I 
mean  only  to  say,  that  in  the  actual  circumstances  of  this 
case,  the  cost  of  replacing  the  fence,  and  not  the  loss  of  an 
ensuing  year's  crop,  is  to  be  taken  as  the  rule  of  damages, 
for  that  part  of  the  injury  which  consisted  in  removing  the 
fence  and  leaving  the  close  exposed. 

Judgment  on  the  default,  for  the  sum  of  $1.50  damages. 


WOLF  v.   STUDEBAKER. 

Pennsylvania,  1870.     65  Pa.  459. 

Thompson,  C.J.1  We  have  no  question  before  us  involving 
the  fact  of  an  agreement  between  the  plaintiff  and  defendant, 
bjr  which  the  latter  agreed  to  let  to  the  former,  on  the 
shares,  her  farm  for  one  year,  from  the  1st  of  April,  1867. 
The  verdict  has  settled  that  fact  in  favor  of  the  plaintiff.  The 
only  question  before  us,  therefore,  is  that  relating  to  dam- 
ages for  the  breach  of  the  contract  to  give  possession  by 
the  defendant. 

The  plaintiff  claimed  to  recover  the  value  of  his  contract, 
that  is  to  say,  what  he  might  reasonably  have  made  out  of  it, 
for  his  damages.  In  Hoy  v.  Gronoble,  10  Casey,  10,  which, 
like  the  case  in  hand,  was  to  recover  damages  for  a  failure, 
on  part  of  the  defendant,  to  deliver  possession  of  the  farm 
which  he  had  agreed  to  let  to  the  plaintiff  to  farm  on  the 
shares,  the  rule  as  to  damages  is  thus  stated  in  the  opinion 
of  the  court  by  Strong,  J. :  "  We  cannot  sa}1,  therefore,  that 
the  jury  were  misled  in  this  case  by  being  told  that  the 
damages  of  the   plaintiff  should   be  measured  by  what  he 

1  Part  of  the  opinion  is  omitted. 


172  CASES  ON  DAMAGES. 

could  have  made  on  the  farm.  This  was  but  another  mode 
of  saying  that  he  was  entitled  to  the  value  of  his  bargain." 
This,  as  a  rule,  does  not  seem  to  have  been  controverted 
by  the  defendant.  But  she  was  permitted  to  prove,  under 
objection,  in  mitigation  of  damages,  by  one  Abraham  May, 
as  follows :  — 

"  Wolf  was  engaged  in  hauling  for  the  bridge  in  the 
summer  of  1867  ;  he  commenced  hauling  in  June,  and  con- 
tinued up  to  the  cold  weather ;  before  this  he  was  working 
lots  around  ;  after  this  he  marketed  some.  Wolf  and  I  looked 
over  his  books  at  one  time,  and  his  earnings  amounted  to  about 
$1000  ;  he  hauled  after  this  ;  he  hauled  hay  to  his  own  stable, 
and  some  to  Bowman's  in  the  latter  part  of  March ;  his  prop- 
erty consists  of  a  house  and  stable,  and  about  a  quarter  of 
an  acre  of  land  ;  I  was  at  Wolfs  sale,"  &c. 

The  earnings  of  this  man  in  this  way,  it  was  thought  by 
the  learned  judge,  should  to  the  extent  of  them  mitigate  the 
damages  arising  from  the  defendant's  broken  contract;  in 
other  words,  the  logic  seemed  to  be  that  because  he  was  an 
industrious  man,  he  was  not  within  the  same  rule  of  com- 
pensation that  one  not  so  would  be.  There  are  undoubtedly 
cases  in  which  such  facts  do  mitigate  damages.  Such  com- 
monly occur  in  cases  of  the  employment  of  clerks,  agents, 
laborers,  or  domestic  servants,  for  a  year  or  a  shorter  deter- 
minate period.  But  I  have  found  no  case  where  a  disappointed 
party  to  a  contract  for  a  specific  thing  or  work,  who,  taking 
the  risk  from  necessity,  of  a  different  business  from  that 
which  his  contract  if  complied  with  would  have  furnished, 
and  shifting  for  himself  and  family  for  employment  for  them 
and  his  teams,  is  to  be  regarded  as  doing  it  for  the  benefit 
of  a  faithless  contractor.  It  seems  to  me,  therefore,  that  the 
rule  upon  which  the  testimony  quoted  was  admitted  was 
wrested  from  its  legitimate  purpose,  and  applied  to  an 
illegitimate  one.  In  2  Greenlf.  Ev.  §  261  a,  the  distinction 
is  marked  between  "  contracts  for  specific  work  and  con- 
tracts for  the  hire  of  clerks,  agents,  laborers,  and  domestic 
servants  for  a  year  or  shorter  determinate  periods."    In  that 


WOLF  v.  STUDEBAKER.  173 

case  the  learned  author  shows  that  the  defendant  may  prove, 
on  a  breach  of  the  contract,  "  either  that  the  plaintiff  was 
actually  engaged  in  other  profitable  service  during  the  term, 
or  that  such  employment  was  offered  to  him,  and  he 
rejected    it." 

There  is  an  evident  distinction  between  such  a  hiring  and 
a  contract  for  the  performance  of  some  specific  undertaking. 
In  the  one  case,  the  party  can  earn  and  expect  to  earn  no 
more  than  single  wages,  and  if  he  gets  that,  his  loss  will 
generally  be  but  nominal.  King  v.  Steiren,  8  Wright,  99,  was  of 
this  nature.  Whereas,  in  the  other  case  the  loss  of  the  party 
is  the  loss  of  the  benefits  of  the  contract  he  is  prepared  to 
perform.  In  Costigan  v.  The  Railroad  Company,  2  Demo, 
609,  in  a  case  of  hiring  for  personal  service,  where  the  party 
was  dismissed  before  his  term  had  expired,  it  was  held  he 
was  not  obliged  to  seek  employment,  nor  perform  services 
offered  him  of  a  different  nature  from  that  he  had  engaged  to 
perform,  in  order  to  recover  full  damages  for  disappointment. 
In  analogy  to  this  principle,  I  would  say,  that  where  a  dis- 
appointed contractor  for  the  performance  of  a  specified  thing 
finds  something  of  a  different  nature  from  his  contract  to  do, 
his  doing  it  ought  not  to  mitigate  the  damages  for  the  breach 
of  his  contract  by  the  other  party.  Indeed,  there  is  enough 
in  the  difficulty  of  applying  such  a  rule  to  discard  it.  It 
would  necessarily  involve  proof  of  everything,  great  and 
small,  no  matter  how  various  the  items  done  by  the  plaintiff 
during  the  period  of  the  contract  might  be,  and  how  much  he 
made  in  the  mean  time.  It  happened  in  this  case,  that  a  wit- 
ness saw  the  plaintiff's  book,  and  testifies  from  it  that  he  had 
earned  $1000.  The  expense  incurred  in  earning  it,  he  did 
not  see,  or,  if  he  did,  did  not  disclose.  But  this  single  case 
ought  not  to  furnish  a  rule  in  other  cases.  It  cannot  be 
that  results  utterly  unconnected  with  the  cause  of  action  and 
the  party  sued  can  be  made  to  tell  to  his  advantage.   .   .   . 

We  think  that  that  which  should  mitigate  damages  in  a 
contract  like  that  we  are  considering  should  be  something 
resulting  from  the  acts  of  the  party  occasioning  the  injury, 


174  CASES   ON  DAMAGES. 

or  from  the  contract  itself.  The  damages  may  be  said  to  be 
fixed  by  the  law  of  the  contract  the  moment  it  is  broken,  and 
I  cannot  see  how  that  is  to  be  altered  by  collateral  circum- 
stances, independent  of,  and  totally  disconnected  from  it, 
and  from  the  party  occasioning  it. 

Judgment  reversed 

SIMPSON  v.  KEOKUK. 
Iowa,  1872.     34  la.  568. 

Action  to  recover  damages  suffered  by  the  plaintiffs,  for 
the  alleged  careless  and  negligent  manner  in  which  the  de- 
fendant had  constructed  the  gutters  and  drains  in  the  streets 
and  alleys  on  which  plaintiffs'  property  abutted. 

Cole,  J.1  The  plaintiffs'  lots  were  lower  than  the  grade 
of  the  streets  and  alleys ;  by  doing  some  filling  in  the  lots 
near  the  alle\',  and  making  a  drain,  much,  if  not  all,  of  plain- 
tiffs' damage  might  have  been  avoided.  If  the  plaintiffs,  by 
the  use  of  ordinary  diligence  and  efforts,  and  at  a  moderate 
expense,  might  have  prevented  the  damage,  it  seems  neces- 
sarily to  follow,  that  their  negligence  contributed  to  the  in- 
jury ;  and  this,  upon  a  well-settled  rule,  would  defeat  the 
plaintiffs'  recovery.  "We  do  not  intimate  that  it  would  have 
been  the  duty  of  plaintiffs  to  interfere  with  the  streets  or 
gutters,  so  as  to  change  the  construction  of  them. 

Reversed. 

INDIANAPOLIS,    BLOOMINGTON,    AND   WESTERN 
RAILWAY  v.  BIRNEY. 

Illinois,  1874.     71  111.  391. 

"Walker,  J.1  We  perceive  nothing  in  this  case  to  take  it 
out  of  the  general  rule,  that  a  party  suing  for  an  injury  re- 
ceived can  only  recover  such  damages  as  flow  from  and  are 
the  immediate  result  of  that  injury.     Damages  produced  by 
1  Part  of  the  opinion  is  omitted. 


INDIANAPOLIS,   B.,   &   W.   RAILWAY  v.  BIRNEY.      175 

other  agencies  than  those  causing  the  injur}',  or  even  by 
agencies  remotely  connected  with  those  causing  the  injury, 
cannot  be  awarded  as  proximate  or  proper  compensation, 
but  only  where  the  injury  flows  from  the  wrongful  act  as  its 
natural  concomitant,  or  as  the  direct  result  thereof.  Where 
speculation  or  conjecture  has  to  be  resorted  to,  for  the  pur- 
pose of  determining  whether  the  injury  results  from  the  wrong- 
ful act  or  from  some  other  cause,  then  the  rule  of  law  excludes 
the  allowance  of  damages  for  such  injury. 

Did  the  sickness  and  loss  of  time  proved  in  this  case  natu- 
rally result  from  the  failure  of  the  train  to  stop  for  appellee? 
That  is  the  only  wrongful  act  charged  to  appellant.  The 
walk  by  appellee  to  the  next  station  was  not  a  natural 
sequence  to  the  failure  of  the  agents  of  the  company  to  stop 
the  train  for  him  to  get  aboard.  That  he  should  be  delayed 
in  reaching  that  point  was  a  natural  consequence,  as  there  was 
no  other  known  means  by  which  the  space  could  be  overcome 
in  so  short  a  time  as  by  a  train  of  cars ;  but  that  appellee 
should  walk  through  the  extreme  cold  to  that  point,  and  thus 
injure  his  health,  was  by  no  means  a  necessary  result.  He 
had  his  option  to  remain  five  or  six  hours,  and  take  the  next 
train,  or  procure  a  horse,  or  a  horse  and  carriage,  and  thus 
have  arrived  much  sooner,  and  all  persons  of  even  small  pru- 
dence and  judgment  know,  with  less  exposure  to  his  health  ; 
and,  being  a  physician,  he  must  have  known  that  he  was  in- 
curring increased  hazard  to  his  health  when  he  determined  to 
walk  instead  of  riding,  and  that  he  was  incurring  a  large 
amount  of  discomfort,  when,  by  awaiting  the  next  train  or 
procuring  a  vehicle  and  horse,  he  could  have  gone  in  com- 
parative comfort  and  free  from  risk  to  his  health. 

Had  he  procured  a  carriage  and  horses  to  make  the  trip, 
the  company  would  no  doubt  have  been  liable  for  reasonable 
compensation  for  its  use  and  for  a  driver,  or  had  he  awaited 
the  next  train,  and  gone  on  it,  he  would  have  been  entitled 
to  nominal  damages  at  least,  and  could  have  recovered  for  all 
such  actual  damages  as  he  could  have  proved  in  the  way  of 
necessarily  increased  expenses  whilst  awaiting  the  arrival  of 


176  CASES  ON  DAMAGES. 

the  train,  and  loss  by  being  unable  to  visit  patients  who 
required  his  medical  advice,  or  injury  or  loss  he  ma}-  have 
actually  sustained  in  his  business,  occasioned  by  the  delay ; 
but  he  had  no  right  to  inflict  injury  upon  himself  to  enhance 
damages  he  sought  to  recover  from  the  road.  Having  been 
wrongfull}*  left  by  the  train,  if  he  supposed  his  business  was 
so  urgent  as  to  prevent  his  awaiting  the  next  train,  he  should 
have  used  all  precautions  in  so  making  the  journej'  as  to  pro- 
duce the  least  injury  to  himself  that  reason  would  dictate. 
He  had  no  right  to  act  with  recklessness  or  wantonly,  and 
then  claim  compensation  for  the  injury  thus  inflicted.  Had 
he  attempted  to  walk  to  the  next  station  barefoot,  and  his 
feet  had  been  frozen,  would  any  sane  man  believe  he  could 
have  recovered  for  such  injury?  We  presume  not,  because 
all  would  say  that  it  was  voluntary  wantonness.  Then,  if 
two  other  modes  presented  themselves,  almost  perfectly  safe 
from  injur}*,  as  was  the  case  here,  and  another,  attended  with 
great  hazard  from  the  exposure  to  extreme  cold  and  over- 
exertion, as  all  reasonable  persons  must  know,  why  should  he 
be  rewarded  for  disregarding  his  safety  and  the  consequent 
injury?  The  injury  by  journey  on  foot  was  unnecessarily  in- 
curred —  was  not  the  necessary  consequence  of  being  left  by 
the  train,  but  was  unnecessarily,  if  not  recklessly,  induced. 
It  was  the  improper,  voluntary  act  of  appellee,  and  for  it  he 
has  no  right  to  recover.  He  must  be  confined  to  the  proxi- 
mate and  natural  damages  resulting  from  the  wrong  of  the 
company.  This  act  is  as  disconnected  from  the  wrong  of  the 
company  as  would  have  been  a  loss  by  a  robbery  on  his  way 
to  the  next  station,  or  the  destruction  of  his  house  by  fire 
after  he  was  left  by  the  train  and  before  he  reached  home,  as 
it  might  be  inferred  by  a  lively  imagination  that  neither  would 
have  occurred,  or  they  could  have  been  prevented,  had  he 
reached  home  on  the  train  that  failed  to  stop  for  him. 

The  court  erred  in  refusing  to  permit  appellant  to  prove 
that  appellee  could,  had  he  desired,  have  procured  accommo- 
dations until  the  next  or  other  train  should  pass  to  Urbana,  or 
could  readily  have  procured  a  conveyance  for  the  purpose. 

Judgment  reversed. 


SUTHERLAND  v.  WYER.  177 

SUTHERLAND  v.  WYER. 

Maine,  1877.     67  Me.  64. 

Virgin,  J.  The  plaintiff  contracted  with  the  defendants  to 
"  play  first  old  man  and  character  business,  at  the  Portland 
museum,  and  to  do  all  things  requisite  and  necessary  to  any 
and  all  performances  which  "  the  defendants  "  shall  designate, 
and  to  conform  strictly  to  all  the  rules  and  regulations  of  said 
theatre,"  for  thirty-six  weeks,  commencing  on  Sept.  6, 1875,  at 
thirty-five  dollars  per  week;  and  the  defendants  agreed  "  to 
pay  him  thirty-five  dollars  for  every  week  of  public  theatrical 
representations  during  said  season."  By  one  of  the  rules 
mentioned,  the  defendants  "reserved  the  right  to  discharge 
any  person  who  may  have  imposed  on  them  by  engaging  for 
a  position  which,  in  their  judgment,  he  is  incompetent  to  fill 
properly." 

The  plaintiff  entered  upon  his  service  under  the  contract, 
at  the  time  mentioned  therein,  and  continued  to  perform  the 
theatrical  characterizations  assigned  to  him,  without  any 
suggestion  of  incompetency,  and  to  receive  the  stipulated 
weekly  salary,  until  the  end  of  the  eighteenth  week ;  when 
he  was  discharged  by  the  defendants,  as  they  contended 
before  the  jury,  for  incompetency  under  the  rule  ;  but,  as  the 
plaintiff  there  contended,  for  the  reason  that  he  declined  to 
accept  twenty-four  dollars  per  week  during  the  remainder  of 
his  term  of  service. 

Three  days  after  his  discharge  and  before  the  expiration  of 
the  nineteenth  week,  the  plaintiff  commenced  this  action  to 
recover  damages  for  the  defendants'  breach  of  the  contract. 
The  action  was  not  premature.  The  contract  was  entire  and 
indivisible.  The  performance  of  it  had  been  commenced,  and 
the  plaintiff  been  discharged  and  thereby  been  prevented  from 
the  further  execution  of  it ;  and  the  action  was  not  brought 
until  after  the  discharge  and  consequent  breach.  Howard  v, 
Daly,  61  N.  Y.  3(32,  and  cases.     Dugan  v.  Anderson,  36  Md. 

12 


178  CASES  ON  DAMAGES. 

567,  and  cases.  The  doctrine  of  Daniels  v.  Newton,  114 
Mass.  530,  is  not  opposed  to  this.  Neither  do  the  defend- 
ants insist  that  the  action  was  prematurely  commenced ;  but 
they  contend  that  the  verdict  should  be  set  aside  as  being 
against  the  weight  of  evidence. 

The  verdict  was  for  the  plaintiff.  The  jury  must,  therefore, 
have  found  the  real  cause  of  his  discharge  to  be  his  refusal  to 
consent  to  the  proposed  reduction  of  his  salary.  The  evidence 
upon  this  point  was  quite  conflicting.  Considering  that  all 
the  company  were  notified,  at  the  same  time,  that  their  re- 
spective salaries  would  be  reduced  one-third,  without  assigning 
any  such  cause  as  incompetency ;  that  no  suggestion  of  the 
plaintiffs  incompetency  was  ever  made  to  him,  prior  to  his 
discharge ;  and  that  his  written  discharge  was  equally  silent 
upon  that  subject,  we  fail  to  find  sufficient  reason  for  disturb- 
ing the  verdict  upon  this  ground  of  the  motion,  especially 
since  the  jury  might  well  find  as  they  did  on  this  branch  of 
the  case,  provided  they  believed  the  testimony  in  behalf  of 
the  plaintiff. 

There  are  several  classes  of  cases  founded  both  in  tort  and 
in  contract,  wherein  the  plaintiff  is  entitled  to  recover,  not 
only  the  damages  actually  sustained  when  the  action  was  com- 
menced, or  at  the  time  of  the  trial,  but  also  whatever  the  evi- 
dence proves  he  will  be  likely  to  suffer  thereafter  from  the  same 
cause.  Among  the  torts  coming  within  this  rule  are  personal 
injuries  caused  by  the  wrongful  acts  or  negligence  of  others. 
The  injury  continuing  beyond  the  time  of  trial,  the  future 
as  well  as  the  past  is  to  be  considered,  since  no  other  action 
can  be  maintained.  So  in  cases  of  contract  the  performance 
of  which  is  to  extend  through  a  period  of  time  which  has  not 
elapsed  when  the  breach  is  made  and  the  action  brought 
therefor  and  the  trial  had.  Remelu  v.  Hall,  31  Vt.  582. 
Among  these  are  actions  on  bonds  or  unsealed  contracts 
stipulating  for  the  support  of  persons  during  their  natural 
life.  Sibley  v.  Rider,  54  Maine,  463.  Philbrook  v.  Burgess, 
52  Maine,  271. 

The  contract   in  controversy  falls  within  the  same  rule. 


SUTHERLAND   v.   WYER.  179 

Although,  as  practically  construed  by  the  parties,  the  salary 
was  payable  weekly,  still,  when  the  plaintiff  was  peremptorily 
discharged  from  all  further  service  during  the  remainder  of 
the  season,  such  discharge  conferred  upon  him  the  right  to 
treat  the  contract  as  entirely  at  an  end,  and  to  bring  his 
action  to  recover  damages  for  the  breach.  In  such  action  he 
is  entitled  to  a  just  recompense  for  the  actual  injury  sustained 
by  the  illegal  discharge.  Prima  facie,  such  recompense 
would  be  the  stipulated  wages  for  the  remaining  eighteen 
weeks.  This,  however,  would  not  necessarily  be  the  sum 
which  he  would  be  entitled  to ;  for,  in  cases  of  contract  as 
well  as  of  tort,  it  is  generally  incumbent  upon  an  injured 
party  to  do  whatever  he  reasonably  can,  and  to  improve  all 
reasonable  and  proper  opportunities  to  lessen  the  injury. 
Miller  v.  Mariners'  Church,  7  Maine,  51,  56  ;  Jones  v.  Jones, 
4  Md.  609  ;  2  Greenl.  Ev.  §  261,  and  notes;  Chamberlin  v. 
Morgan,  68  Pa.  St.  168  ;  Sedg.  on  Dam.  (6th  ed.)  416,  417, 
cases  supra.  The  plaintiff  could  not  be  justified  in  lying  idle 
after  the  breach ;  but  he  was  bound  to  use  ordinary  diligence 
in  securing  employment  elsewhere,  during  the  remainder  of 
the  term ;  and  whatever  sum  he  actually  earned  or  might 
have  earned  by  the  use  of  reasonable  diligence,  should  be 
deducted  from  the  amount  of  the  unpaid  stipulated  wages. 
And  this  balance,  with  interest  thereon,  should  be  the  amount 
of  the  verdict.  Applying  the  rule  mentioned,  the  verdict  will 
be  found  too  large. 

By  the  plaintiffs  own  testimony,  he  received  only  $60, 
from  all  sources  after  his  discharge, —  $25  in  February  and 
$35  from  the  10th  to  the  20th  of  April,  at  Booth's.  His  last 
engagement  was  for  eight  weeks,  commencing  April  10, 
which  he  abandoned  on  the  20th,  thus  voluntarily  omitting 
an  opportunity  to  earn  $57,  prior  to  the  expiration  of  his 
engagement  with  the  defendants,  when  the  law  required  him 
to  improve  such  an  opportunity,  if  reasonable  and  proper. 
We  think  he  should  have  continued  the  last  engagement  until 
May  6,  instead  of  abandoning  it  and  urging  a  trial  in  April, 
especially  inasmuch  as  he  could  have  obtained  a  trial  in  May, 


180  CASES  ON  DAMAGES. 

just  as  well.     The  instructions  taken  together  were  as  favor- 
able to  the  defendants  as  they  were  entitled  to. 

If,  therefore,  the  plaintiff  will  remit  $57,  he  may  have  judg- 
ment for  the  balance  of  the  verdict ;  otherwise  the  entry  must 
be  verdict  set  aside  and  new  trial  granted. 


PLUMMER  v.  PENOBSCOT  LUMBERING  ASSO- 
CIATION. 

Maine,  1877.     67  Me.  363. 

Case,  in  substance,  that  the  plaintiff  was  possessed  of  about 
700  M.  feet  of  logs  in  the  Penobscot  River,  fastened  to  posts 
and  trees ;  that  the  river  is  a  public  highway ;  that  the  de- 
fendants on  or  about  July  10,  1873,  carelessly  and  unlawfully 
obstructed  the  channel  in  violation  of  their  charter,  at  a  point 
just  below  where  the  plaintiff's  logs  were  fastened  ;  that  the 
boom  remained  one  month,  during  which  time  the  plaintiff 
was  prevented  from  running  his  logs  down  ;  that  during  the 
time  the  market  value  depreciated  ;  that  this  detention  was 
to  prevent  the  West  Branch  logs  from  coming  clown  the  river 
and  perhaps  going  to  sea;  but  that  without  this  detention, 
the  West  Branch  logs  would  have  passed  safety  by  and  the 
plaintiff  been  uninjured  ;  that  when  the  boom  was  open,  the 
plaintiff's  rafts  were  torn  from  their  fastening  and  scattered 
and  carried  down  river,  whereby  the  plaintiff  was  put  to  great 
expense  and  damage,  1st  in  looking  after  his  logs,  2nd,  in  the 
depreciation  of  the  value  while  the  boom  was  closed,  and  3d, 
for  logs  carried  awaj\ 

The  defendants  relied  upon  their  charter  and  alleged  want 
of  care  on  the  part  of  the  plaintiff.1 

The  presiding  justice  instructed  the  jury  that  the  plaintiff 
was  not  required  to  exercise  anjT  care  of  the  logs  unless  he 
had  notice  that  they  were  in  danger. 

Dickerson,  J.     The  plaintiff  was  not  bound  to  take  notice 

1  Part  of  the  case  is  omitted. 


BRANT  v.   GALLUP.  181 

of  the  declared  purpose  of  the  company  to  swing  a  boom 
across  the  river.  Such  declaration  imposed  no  additional 
duty  upon  him.  Non  constat  that  the  wrongful  act  threatened 
would  be  committed.  It  is  sufficient  for  him  if  he  exercised 
ordinary  care  in  the  preservation  of  his  logs  after  he  had 
knowledge  that  the  wrong  was  done.  The  defendants  were 
not  in  a  situation  to  require  of  the  plaintiff  a  greater  degree 
of  care,  nor  was  he  bound  to  render  it.  The  instructions 
upon  this  branch  of  the  case,  and  also  in  regard  to  the  mea- 
sure of  damages,  are  unobjectionable. 

Exceptions  overruled. 


BRANT  v.  GALLUP. 

Illinois,  1885.     Ill  111.  487. 

This  was  an  action  on  the  case,  brought  on  the  6th  day  of 
October,  1876,  by  Daniel  R.  Brant,  against  Benjamin  E. 
Gallup  and  Francis  B.  Peabody.  The  declaration  substan- 
tially avers  that  Gallup  &  Peabody  were  loan  agents,  and  on 
April  1,  1869,  negotiated  a  loan  from  one  Bourne,  to  Brant, 
of  $45,000,  pa}-able  in  five  }'ears,  and  for  security  to  Bourne 
took  Brant's  mortgage  on  certain  property  and  the  Dearborn 
theatre,  in  Chicago  ;  that  Brant,  in  consideration  of  taking 
the  loan  and  executing  the  mortgage,  and  $2500  commissions 
paid  to  Gallup  &  Peabody,  employed  them,  and  they  agreed 
with  him,  to  procure  to  be  insured,  and  to  keep  insured  during 
the  life  of  the  mortgage,  the  said  theatre  building,  against 
loss  or  damage  b}'  fire,  in  good  and  responsible  insurance 
companies,  to  the  amount  of  its  fair  insurable  value,  —  the 
plaintiff,  on  notification  and  request,  to  pay  the  premiums  ; 
that  the  fair  insurable  value  of  the  theatre  was  $150,000; 
that  the  defendants  failed  and  neglected  to  perform  their 
duties  in  the  above-named  respects,  and  that  during  the  life 
of  the  mortgage,  and  on  October  9,  1871,  the  Dearborn 
theatre  was  destroyed  by  fire,  and  by  reason  of  the  premises 
the  plaintiff  lost  the  fair  insurable  value  of  the  building. 


182  CASES   ON  DAMAGES. 

There  were  three  trials  in  the  case,  the  first  resulting  in  a 
verdict  for  plaintiff  for  $73,666.66,  the  second  and  third  in 
verdicts  for  the  defendants.  The  judgment  on  the  last  ver- 
dict was,  on  error,  affirmed  by  the  Appellate  Court  for  the 
First  District,  and  the  plaintiff  appealed  to  this  court.  A 
motion  was  made  to  dismiss  the  appeal  for  want  of  jurisdic- 
tion of  this  court  to  hear  the  appeal. 

Walker,  J.1  It  is  claimed  that  the  tenth  instruction  is 
vicious,  and  it  was  error  to  give  it.  It  in  substance  informed 
the  jury  that  if  they  believed,  from  the  evidence,  that  appel- 
lant had  been  informed  a  sufficient  time  before  the  fire  that 
the  theatre  was  inadequately  insured,  then  it  was  his  duty  to 
have  effected  additional  insurance,  if  he  deemed  it  necessary, 
and,  failing  to  do  so,  he  could  not  recover.  This  involves 
the  question  whether,  in  case  of  a  breach  of  a  contract  for 
indemnity,  the  person  indemnified,  knowing  of  the  breach  of 
the  agreement,  may  lie  by  and  permit  the  loss  to  occur  with- 
out a  demand  of  performance  of  agreement,  or  to  take  other 
steps  to  secure  himself  from  the  loss,  by  performing  the 
acts  undertaken  to  be  performed  by  the  other  part}*,  or  to 
procure  other  indemnity.  The  substance  of  this  instruction 
is,  that  the  party  indemnifled  shall  take  such  steps.  It  has 
been  repeatedly  held  that  a  party  being  damaged  cannot  stand 
b}T  and  suffer  the  injury  to  continue  and  increase,  without 
reasonable  effort  to  prevent  further  loss.  Justice  and  the 
principles  of  fairness  require  that  every  one  shall  use  all 
reasonable  efforts  to  preserve  his  property  and  protect  bis 
interests,  even  against  the  wrong  or  negligence  of  another. 
It  is  said  it  is  not  only  the  moral  but  the  legal  duty  of  a 
party  who  seeks  to  recover  for  another's  wrong,  to  use  due 
diligence  in  preventing  loss  thereby.  This  principle  applies 
to  a  breach  of  contract,  and  a  party  is  not  entitled  to  com- 
pensation for  injurious  consequences  from  such  breach,  so 
far  as  he  had  the  information,  time,  and  opportunity  necessary 
to  prevent  them.  (See  Sedgwick  on  Damages,  6th  ed,  p.  106, 
both  text  and  note,  and  authorities  cited.)     The  same  princi- 

1  Part  of  the  opinion  is  omitted. 


SALLADAY  v.  DODGEVILLE.  183 

pie  has  been  recognized  by  this  court  in  cases  of  trespass. 
If  the  doctrine  is  correct  (and  we  perceive  no  reason,  on 
principle  or  authority,  to  doubt  it),  then  it  was  the  duty  of 
appellant  to  have  procured  insurance.  Gallup  &  Peabody, 
so  far  as  is  disclosed  by  the  record,  never,  after  the  mortgage 
was  executed,  procured  a  dollar  of  insurance  on  the  buildings. 
It  is,  however,  claimed,  that  they  directed  the  insurance  agents 
to  issue  policies,  and  when  called  on  by  the  agents,  appellant 
paid  the  premiums.  If  this  is  true,  appellant  was  fully  in- 
formed of  the  extent  they  had  ordered  insurance  for  him,  and 
as  he  made  no  objection  to  the  amount,  he  must  have  been 
satisfied.  Had  he  not  been,  he  surely  would  have  seen  them, 
and  ordered  more,  and  as  he  did  not,  he  accepted  what  they 
did  as  a  performance  of  their  part  of  the  contract.  Knowing 
the  amount  they  had  ordered,  if  not  satisfactorj-,  and  the 
contract  was  broken  by  a  failure  to  order  more,  it  was  the 
duty  of  appellant  to  procure  such  an  amount  as  he  regarded 
necessary,  and,  failing  to  do  so,  under  the  authorities  referred 
to  he  could  not  recover.  This  instruction,  therefore,  was  not 
erroneous,  and  no  error  was  committed  in  giving  it. 

Judgment  affirmed. 


SALLADAY  v.   DODGEVILLE. 

Wisconsin,  1893.     85  Wis.  318. 

Action  b}*  Ella  M.  Sallada}-  against  the  town  of  Dodge- 
ville  to  recover  damages  for  personal  injuries  caused  by  a 
*  defective  highway.  The  defendant  requested  the  court  to 
S  charge  that  if  they  found  from  the  evidence  "  that  the 
injuries,  sufferings,  or  disability  of  the  plaintiff  were  in- 
creased or  rendered  permanent  by  any  want  of  such  ordinary 
care  on  her  part,  or  by  reason  of  her  becoming  pregnant 
after  the  accident,  and  such  pregnane}'  prevented  proper 
medical  treatment  of  her  injuries,  and  such  want  of  treat- 
ment resulted  in  increased  prolongation  or  permanency  of 
her  injuries,  sufferings,  or  disability,  which  would  not  other- 


184  CASES  ON  DAMAGES. 

wise  have  resulted,  she  cannot  recover  from  the  defendant 
for  any  increased  prolongation  or  permanency  of  her  injuries, 
suffering,  or  disability,  resulting  from  such  want  of  care,  if 
you  find  there  was  such  want  of  care,  or  from  such  preg- 
nancy, if  you  find  there  was  such  pregnancy."  This  latter 
instruction  the  court  refused. 

Pinney,  J.1  The  instructions  of  the  court  in  respect  to  the 
effect  of  the  after-pregnancy  of  the  plaintiff  upon  the  ques- 
tion of  damages,  we  think  were  correct.  If  the  plaintiff  had 
rendered  the  consequences  of  the  wrongful  act  of  the  defend- 
ant more  severe  or  injurious  to  herself  by  some  voluntary  act 
which  it  was  her  duty  to  refrain  from,  or  if  by  her  neglect  to 
exert  herself  reasonably  to  limit  the  injuiy  and  prevent  the 
damages,  in  the  cases  in  which  the  law  imposes  that  duty, 
and  thereby  she  suffered  additional  injury  from  the  defend- 
ant's act,  evidence  is  admissible  in  mitigation  of  damages  to 
ascertain  to  what  extent  the  damages  claimed  are  to  be 
attributed  to  such  acts  or  omissions  of  the  plaintiff.  It  is  a 
question  of  negligence,  and  the  measure  of  duty  is  ordinary 
care  and  diligence  in  the  adoption  of  such  measures  of  care 
or  prevention  as  the  case  required  and  were  within  her 
knowledge  or  power.  1  Suth.  Dam.  §  155,  ut  supra.  It 
does  not  appear  that  her  medical  adviser  gave  her  any 
caution  to  avoid  sexual  intercourse,  or  even  pregnancy,  nor 
is  there  any  evidence  to  show  that  she  knew  or  understood 
that  the  nature  of  her  injury  was  such  that  it  was  not  prudent 
that  she  should  do  so.  The  mere  fact  that  eight  weeks  after 
the  injuiy  pregnancy  occurred,  and  when  no  caution  in  that 
respect  appears  to  have  been  given  by  her  medical  adviser, 
is  not  necessarily  and  as  a  matter  of  law  sufficient  ground  to 
justify  a  reduction  of  damages  for  the  injury  caused  by  the 
defendant's  negligence,  although  the  results  of  the  injury 
may  have  been  thereby  prolonged,  or  her  recovery  delayed. 
The  instructions  given  were  correct  in  view  of  the  testimony, 
and  the  one  asked  b}r  the  defendant  was  properly  refused. 
The   doing   of  any   act   which    prevented    or  retarded    her 

1  Part  of  the  opinion  is  omitted. 


CLARK  v.   MARSIGLIA.  185 

recovery  is  not  of  itself  a  ground  for  reduction  of  damages. 
To  have  that  effect  it  must  have  been  a  negligent  act,  and 
whether  an  act  is  or  is  not  negligent  is  a  question  for  the 
junr,  and  not  of  law  for  the  court,  if  different  minds  may 
properly  draw  different  inferences,  even  from  the  same 
established  facts.  The  instructions  asked  entirely  ignored 
this  material  consideration,  whether  the  plaintiff  was  negli- 
gent or  at  fault  for  what  occurred  after  her  injury. 


CLARK  v.  MARSIGLIA. 

New  York,  1845.     1  Denio,  317. 

Error  from  the  New  York  common  pleas.  Marsiglia  sued 
Clark  in  the  court  below  in  assumpsit,  for  work,  labor,  and 
materials,  in  cleaning,  repairing,  and  improving  sundry  paint- 
ings belonging  to  the  defendant.  The  defendant  pleaded  non 
assumpsit. 

The  plaintiff  proved  that  a  number  of  paintings  were 
delivered  to  him  by  the  defendant  to  clean  and  repair,  at 
certain  prices  for  each.  The}-  were  delivered  upon  two 
occasions.  As  to  the  first  parcel,  for  the  repairing  of  which 
the  price  was  seventy-five  dollars,  no  defence  was  offered. 
In  respect  to  the  other,  for  which  the  plaintiff  charged  one 
hundred  and  fifty-six  dollars,  the  defendant  gave  evidence 
tending  to  show  that  after  the  plaintiff  had  commenced  work 
upon  them,  he  desired  him  not  to  go  on,  as  he  had  concluded 
not  to  have  the  work  done.  The  plaintiff,  notwithstanding, 
finished  the  cleaning  and  repairing  of  the  pictures,  and 
claimed  to  recover  for  doing  the  whole,  and  for  the  materials 
furnished,  insisting  that  the  defendant  had  no  right  to  coun- 
termand the  order  which  he  had  given.  The  defendant's 
counsel  requested  the  court  to  charge  that  he  had  the  right  to 
countermand  his  instructions  for  the  work,  and  that  the  plain- 
tiff could  not  recover  for  any  work  done  after  such  countermand. 
The  court  declined   to  charge  as  requested,  but,  on  the 


186  CASES  ON  DAMAGES. 

contrary,  instructed  the  jury  that  inasmuch  as  the  plaintiff 
had  commenced  the  work  before  the  order  was  revoked,  he 
had  a  right  to  finish  it,  and  to  recover  the  whole  value  of  his 
labor  and  for  the  materials  furnished.  The  jury  found  their 
verdict  accordingly,  and  the  defendant's  counsel  excepted. 
Judgment  was  rendered  upon  the  verdict. 

Per  Curiam.  The  question  does  not  arise  as  to  the  right 
of  the  defendant  below  to  take  awa}'  these  pictures,  upon 
which  the  plaintiff  had  performed  some  labor,  without  pay- 
ment for  what  he  had  done,  and  his  damages  for  the  violation 
of  the  contract,  and  upon  that  point  we  express  no  opinion. 
The  plaintiff  was  allowed  to  recover  as  though  there  had 
been  no  countermand  of  the  order ;  and  in  this  the  court 
erred.  The  defendant,  by  requiring  the  plaintiff  to  stop 
work  upon  the  paintings,  violated  his  contract,  and  thereby 
incurred  a  liability  to  pay  such  damages  as  the  plaintiff 
should  sustain.  Such  damages  would  include  a  recompense 
for  the  labor  done  and  materials  used,  and  such  further  sum 
in  damages  as  might,  upon  legal  principles,  be  assessed  for 
the  breach  of  the  contract :  but  the  plaintiff  had  no  right,  by 
obstinately  persisting  in  the  work,  to  make  the  penalty  upon 
the  defendant  greater  than  it  would  otherwise  have  been. 

To  hold  that  one  who  emplo3's  another  to  do  a  piece  of 
work  is  bound  to  suffer  it  to  be  done  at  all  events,  would 
sometimes  lead  to  great  injustice.  A  man  may  hire  another 
to  labor  for  a  year,  and  within  the  }rear  his  situation  may  be 
such  as  to  render  the  work  entirely  useless  to  him.  The 
party  employed  cannot  persist  in  working,  though  he  is 
entitled  to  the  damages  consequent  upon  his  disappointment. 
So  if  one  hires  another  to  build  a  house,  and  subsequent 
events  put  it  out  of  his  power  to  pay  for  it,  it  is  commend- 
able in  him  to  stop  the  work,  and  pa}'  for  what  has  been  done 
and  the  damages  sustained  by  the  contractor.  He  may  be 
under  a  necessity  to  change  his  residence  ;  but  upon  the  rule 
contended  for,  he  would  be  obliged  to  have  a  house  which  he 
did  not  need  and  could  not  use.  In  all  such  cases  the  just 
claims  of  the  party  employed  are  satisfied  when  he  is  fully 


LE  BLANCHE  v.  LONDON  AND  N.   W.   RADLWAY.     187 

recompensed  for  his  part  performance  and  indemnified  for 
his  loss  in  respect  to  the  part  left  unexecuted  ;  and  to  persist 
in  accumulating  a  larger  demand  is  not  consistent  with  good 
faitli  towards  the  employer.  The  judgment  must  be  reversed, 
and  a  venire  cle  novo  awarded.  Judgment  reversed. 

LE  BLANCHE  v.  LONDON  AND  NORTH  WESTERN 
RAILWAY. 

Court  of  Appeal,  1876.     1  C.  P.  Div.  286. 

Mellish,  L.J.1  This  was  an  appeal  from  a  judgment  of 
the  Common  Pleas  Division,  affirming  a  judgment  of  the 
county  court  judge  sitting  at  Bloomsbuiy,  special  leave  hav- 
ing been  given  to  appeal  to  us.  The  action  in  the  county 
court  was  brought  by  the  plaintiff,  Mr.  Le  Blanche,  against 
the  London  and  North  Western  Railway  Company,  to  recover 
£11  lO.s.,  the  cost  of  a  special  train  which  the  plaintiff  en- 
gaged to  carry  him  from  York  to  Scarborough,  on  account  of 
his  having  arrived  too  late  at  York  for  the  train  which  leaves 
York  at  6.5  for  Scarborough,  through,  as  he  alleged,  the 
neglect  of  the  defendants  in  not  properly  performing  their 
contract  with  him  to  convey  him  from  Liverpool  to  Scar- 
borough. It  was  held  by  the  judge  of  the  county  court  that 
the  plaintiff  was  entitled  to  recover  the  cost  of  the  special 
train.  .   .   . 

I  agree  that,  as  a  general  rule,  what  is  said  by  Alderson,  B., 
in  Hamlin  v.  Great  Northern  Ry.  Co.,  1  H.  &  N.  408,  26 
L.  J.  (n.s.)  (Ex.  Ch.)  20,  at  p.  22,  is  correct,  namely  :  "  The 
principle  is,  that  if  the  party  does  not  perform  his  contract 
the  other  may  do  so  for  him  as  near  as  may  be,  and  charge 
him  for  the  expense  incurred  in  so  doing."  I  agree  also  with 
what  is  said  by  the  judges  of  the  Common  Pleas  Division, 
that  this  rule  is  not  an  absolute  one  applicable  to  all  cases, 
and  that  the  question  must  always  be  whether  what  was  done 
was  a  reasonable  thing  to  do  having  regard  to  all  the  circum- 
stances.    This,  however,  is  a  very  vague  rule,  and  it  is  desir- 

1  Part  of  this  opinion  is  omitted.  Cleasby,  B.,  James,  L.J.,  Baggal- 
lay,  J.A.,  and  Mellou,  J.,  delivered  concurring  opinions. 


188  CASES  ON  DAMAGES. 

able  to  consider  whether  any  more  definite  rule  can  be  laid 
down.  Now,  one  mode  of  determining  what,  under  the  cir- 
cumstances, was  reasonable,  is  to  consider  whether  the  ex- 
penditure was  one  which  any  person  in  the  position  of  the 
plaintiff  would  have  been  likely  to  incur  if  he  had  missed 
the  train  through  his  own  fault,  and  not  through  the  fault  of 
the  railwa}'  company.  The  rule  that  what  is  reasonable  under 
particular  circumstances  ma}'  be  discovered  by  considering 
what  a  prudent  person,  uninsured,  would  do  under  the  same 
circumstances,  is  applicable  to  many  cases  besides  those 
which  arise  under  policies  of  marine  insurance. 

I  think  that  any  expenditure  which,  according  to  the  ordi- 
nary habits  of  societ\',  a  person  who  is  delayed  in  his  journey 
would  naturally  incur  at  his  own  cost,  if  he  had  no  company 
to  look  to,  he  ought  to  be  allowed  to  incur  at  the  cost  of  the 
company,  if  he  has  been  delayed  through  a  breach  of  con- 
tract on  the  part  of  the  compan}',  but  that  it  is  unreasonable 
to  allow  a  passenger  to  put  the  Compaq*  to  an  expense  to 
which  he  could  not  think  of  putting  himself  if  he  had  no 
company  to  look  to.  The  question,  then,  in  my  opinion, 
which  the  county  court  judge  ought  to  have  considered  is, 
whether,  according  to  the  ordinary  habits  of  society,  a  gentle- 
man in  the  position  of  the  plaintiff,  who  was  going  to  Scar- 
borough for  the  purpose  of  amusement,  and  who  missed  his 
train  at  York,  would  take  a  special  train  from  York  to  Scar- 
borough at  his  own  cost,  in  order  that  he  might  arrive  at 
Scarborough  an  hour  or  an  hour  and  a  half  sooner  than  he 
would  do  if  he  waited  at  York  for  the  next  ordinary  train. 
This  question  seems  to  me  to  admit  of  but  one  answer, 
namely,  that  no  one  but  a  very  exceptionally  extravagant 
person  would  think  of  taking  a  special  train  under  such  cir- 
cumstances. I  am  of  opinion,  therefore,  that  the  county 
court  judge  did  not  act  on  the  proper  principle  in  consider- 
ing the  question  of  damage ;  and  that  unless  the  parties  con- 
sent to  the  damages  being  reduced  to  Is.,  there  ought  to  be 
an  order  for  a  new  trial. 

I  think  each  part}-  should  pay  his  own  costs  of  the  appeal 
to  the  Common  Pleas  Division,  and  of  the  appeal  to  us. 


CHAPTER  VII. 

COUNSEL   FEES. 


LINSLEY  v.  BUSHNELL. 
Connecticut,  1842.     15  Conn.  225. 

This  was  an  action  on  the  case  for  personal  injury.1 
Church,  J.  An  objection  is  made  to  the  charge  of  the 
judge  in  relation  to  the  principle  which  might  have  influence 
in  the  assessment  of  damages.  And  cases  from  Massachu- 
setts and  New  York, .are  relied  upon  in  support  of  this  objec- 
tion. Whatever  may  have  been  formerly,  or  ma}T  be  now  the 
practice  of  the  courts  of  other  States  upon  this  subject,  we  are 
certain  our  own  practice  has  been  uniformly  and  immemori- 
al ly  such  as  the  judge  recognized  in  his  charge  in  this  case. 
JVblumus  leges  mutare.  We  have  no  disposition  to  discard 
our  own  usages  in  this  respect.  We  believe  them  to  be 
founded  in  the  highest  equity,  and  sanctioned  by  the  clearest 
principles.  The  judge  informed  the  jury,  that  in  estimating 
the  damages,  they  had  a  right  to  take  into  consideration  the 
necessary  trouble  and  expenses  of  the  plaintiff,  in  the  prose- 
cution of  this  action. 

In  actions  of  this  character,  there  is  no  rule  of  damages 
fixed  by  law,  as  in  cases  of  contract,  trover,  &c.  The  ob- 
ject is  the  satisfaction  and  remuneration  for  a  personal  in- 
jury, which  is  not  capable  of  an  exact  cash  valuation.  The 
circumstances  of  aggravation  or  mitigation,  —  the  bodily 
pain,  —  the  mental  anguish,  —  the  injury  to  the  plaintiff's 
business  and  means  of  livelihood,  past  or  prospective;  —  all 
1  The  statement  of  facts  and  part  of  the  opinion  ar«  o*">tted 


IPO  CASES   ON  DAMAGES. 

these  and  many  othev  circumstances  may  be  taken  Into  con- 
sideration, by  the  jury,  in  guiding  their  discretion  in  assessing 
damages  for  a  wanton  personal  injury.  But  these  are  not  all, 
that  go  to  make  up  the  amount  of  damage  sustained.  The 
bill  of  the  surgeon,  and  other  pecuniary  charges  to  which  the 
plaintiff  has  been  necessarily  subjected,  by  the  misconduct  of 
the  defendant,  are  equally  proper  subjects  of  consideration. 
And  shall  a  defendant,  who  has  refused  redress  for  an  unpro- 
voked and  severe  personal  injury,  and  thus  driven  the  plaintiff 
to  seek  redress  in  the  courts  of  law,  be  permitted  to  say,  that 
the  trouble  and  expense  of  the  remedy  was  unnecessary,  and 
was  not  the  necessary  result  of  his  own  acts,  connected  with 
his  refusal  to  do  justice? 

There  is  no  principle  better  established,  and  no  practice 
more  universal,  than  that  vindictive  damages,  or  smart  money, 
may  be,  and  is,  awarded,  by  the  verdicts  of  juries,  in  cases  of 
wanton  or  malicious  injuries,  and  whether  the  form  of  the 
action  be  trespass  or  case.  We  refer  to  the  authorities  before 
cited,  and  also  to  Denison  v.  Hyde,  6  Conn.  Rep.  508  ;  Woert 
v.  Jenkins,  14  Johns.  Rep.  352  ;  Merills  v.  Tariff  Manufac- 
turing Company,  10  Conn.  Rep.  384;  Edwards  v.  Beach,  3 
Day,  447.  In  this  last  case,  Daggett,  in  argument  for  the 
defendant,  admits,  that  where  an  important  right  is  in  ques- 
tion, in  an  action  of  trespass,  "  the  court  have  given  damages 
to  indemnify  the  party  for  the  expense  of  establishing  it." 
The  argument  in  opposition  to  the  doctrine  of  the  charge,  is 
substantially  founded  upon  the  assumed  principle,  that  the  de- 
fendant cannot  be  subjected  in  a  greater  sum  in  damages 
than  the  plaintiff  has  actually  sustained.  But  every  case  in 
which  the  recovery  of  vindictive  damages  has  been  justified, 
stands  opposed  to  this  argument.  And  we  cannot  compre- 
hend the  force  of  the  reasoning,  which  will  admit  the  right  of 
a  plaintiff  to  recover,  as  vindictive  damages,  beyond  the 
amount  of  injury  confessed!}'  incurred,  and  in  case  of  an  act 
and  injury  equalljr  wanton  aud  wilfully  committed  or  permitted, 
will  deny  to  him  a  right  to  recover  an  actual  indemnity  for 
the  expense  to  which  the  defendant's  misconduct  has  sub- 


DAY  v.   WOODWORTH.  191 

jected  him.  In  the  cases  to  which  we  have  been  referred,  in 
other  States,  as  deciding  a  different  principle,  the  courts  seem 
to  have  assumed,  that  the  taxable  costs  of  the  plaintiff  are 
his  only  legitimate  compensation  for  the  expense  incurred. 
If  taxable  costs  are  presumed  to  be  equivalent  to  actual, 
necessary  charges,  as  a  matter  of  law;  every  client  knows, 
as  a  matter  of  fact,  they  are  not.  And  legal  fictions  should 
never  be  permitted  to  work  injustice.  This  court  has  repudi- 
ated this  notion.  It  was  formerly  holden  in  England,  and 
perhaps  is  so  considered  now,  that  no  action  would  lie  for  the 
injury  sustained  by  the  prosecution  of  a  vexatious  civil  action, 
when  there  has  been  no  arrest  or  imprisonment ;  because  the 
costs  recovered,  compensated  for  that  injury.  But  this  court, 
in  the  case  of  Whipple  v.  Fuller,  11  Conn.  Rep.  582,  hold  a 
contrary  doctrine,  and  say,  "  we  cannot,  at  this  day,  shut 
our  eyes  to  the  fact  known  by  everybody,  that  taxable  costs 
afford  a  very  partial  and  inadequate  remuneration  for  the 
necessary  expenses  of  defending  an  unfounded  suit." 


DAY  v.   WOODWORTH. 
United  States  Supreme  Court,  1851.     13  How.  363. 

Grier,  J.1  The  court  instructed  the  jury  "  that  if  they 
should  find  for  the  plaintiff  on  the  first  ground,  viz.,  that  the 
defendants  had  taken  down  more  of  the  dam  than  was  neces- 
sary to  relieve  the  mills  above,  unless  such  excess  was  wan- 
ton and  malicious,  then  the  jury  would  allow  in  damages  the 
cost  of  replacing  such  excess,  and  compensation  for  any 
delay  or  damage  occasioned  by  such  excess,  but  not  an}r- 
thing  for  counsel  fees  or  extra  compensation  to  engineers." 

This  instruction  of  the  court  is  excepted  to,  on  two 
grounds.  First,  because  "  this  being  an  action  of  trespass, 
the  plaintiff  was  not  limited  to  actual  damages  proved,"  and 
secondly,  that  the  jury,  under  the  conditions  stated  in  the 

1  Part  of  the  opinion  is  omitted. 


192  CASES  ON  DAMAGES. 

charge,  should  have  been  instructed  to  include  in  their  ver- 
dict for  the  plaintiff,  not  only  the  actual  damages  suffered, 
but  his  counsel  fees  and  other  expenses  incurred  in  prose- 
cuting his  suit. 

It  is  a  well-established  principle  of  the  common  law,  that 
in  actions  of  trespass  and  all  actions  on  the  case  for  torts,  a 
jury  ma}'  inflict  what  are  called  exemplary,  punitive,  or  vin-  / 
dictive  damages  upon  a  defendant,  having  in  view  the  enor- 
mit}r  of  his  offence  rather  than  the  measure  of  compensation 
to  the  plaintiff.  We  are  aware  that  the  propriety  of  this 
doctrine  has  been  questioned  by  some  writers ;  but  if  re- 
peated judicial  decisions  for  more  than  a  century  are  to  be 
received  as  the  best  exposition  of  what  the  law  is,  the  ques- 
tion will  not  admit  of  argument.  By  the  common  as  well  as 
by  statute  law,  men  are  often  punished  for  aggravated  mis- 
conduct or  lawless  acts,  by  means  of  a  civil  action,  and  the 
damages,  inflicted  by  way  of  penalty  or  punishment,  given  to 
the  party  injured.  In  many  civil  actions,  such  as  libel, 
slander,  seduction,  &c,  the  wrong  done  to  the  plaintiff  is 
incapable  of  being  measured  by  a  money  standard ;  and  the 
damages  assessed  depend  on  the  circumstances,  showing  the 
degree  of  moral  turpitude  or  atrocity  of  the  defendant's  con- 
duct, and  may  properly  be  termed  exemplary  or  vindictive 
rather  than  compensatory. 

In  actions  of  trespass,  where  the  injury  has  been  wanton 
and  malicious,  or  gross  and  outrageous,  courts  permit  juries 
to  add  to  the  measured  compensation  of  the  plaintiff  which 
he  would  have  been  entitled  to  recover,  had  the  injury  been 
inflicted  without  design  or  intention,  something  farther  by 
way  of  punishment  or  example,  which  has  sometimes  been 
called  "  smart  money."  This  has  been  always  left  to  the 
discretion  of  the  jury,  as  the  degree  of  punishment  to  be 
thus  inflicted  must  depend  on  the  peculiar  circumstances  of 
each  case.  It  must  be  evident,  also,  that  as  it  depends  upon 
the  degree  of  malice,  wantonness,  oppression,  or  outrage  of 
the  defendant's  conduct,  the  punishment  of  his  delinquency 
cannot  be  measured  by  the  expenses  of  the  plaintiff  in  prose- 


DAY  v.    WOODWORTH.  193 

cuting  his  suit.  It  is  true  that  damages,  assessed  by  way  of 
example,  may  thus  indirectly  compensate  the  plaintiff  for 
money  expended  in  counsel  fees ;  but  the  amount  of  these 
fees  cannot  be  taken  as  the  measure  of  punishment  or  a 
necessary  element  in  its  infliction. 

This  doctrine  about  the  right  of  the  jury  to  include  in  their 
verdict,  in  certain  cases,  a  sum  sufficient  to  indemnify  the 
plaintiff  for  counsel  fees  and  other  real  or  supposed  expenses 
over  and  above  taxed  costs,  seems  to  have  been  borrowed 
from  the  civil  law  and  the  practice  of  the  courts  of  admi- 
ralty. At  first,  by  the  common  law,  no  costs  were  awarded 
to  either  party,  eo  nomine.  If  the  plaintiff  failed  to  recover 
he  was  amerced  pro  falso  clamore.  If  he  recovered  judg-  /  ^yY» u 
ment,  the  defendant  was  in  misericordia  for  his  unjust  deten-  / 
tion  of  the  plaintiff's  debt,  and  was  not  therefore  punished 
with  the  expensa  litis  under  that  title.  But  this  being  con- 
sidered a  great  hardship,  the  statute  of  Gloucester  (6  Edw. 
1,  c.  1)  was  passed,  which  gave  costs  in  all  cases  when  the 
plaintiff  recovered  damages.  This  was  the  origin  of  costs  de 
incremento ;  for  when  the  damages  were  found  by  the  jury, 
the  judges  held  themselves  obliged  to  tax  the  moderate  fees 
of  counsel  and  attorneys  that  attended  the  cause.  See  Bac. 
Abr.  tit.  Costs. 

Under  the  provisions  of  this  statute  ever}'  court  of  common 
law  has  an  established  system  of  costs,  which  are  allowed  to 
the  successful  party  by  way  of  amends  for  his  expense  and 
trouble  in  prosecuting  his  suit.  It  is  true,  no  doubt,  and  is 
especially  so  in  this  country  (where  the  legislatures  of  the 
different  States  have  so  much  reduced  attorneys'  fee-bills, 
and  refused  to  allow  the  honorarium  paid  to  counsel  to  be 
exacted  from  the  losing  party),  that  the  legal  taxed  costs  are 
far  below  the  real  expenses  incurred  by  the  litigant ;  yet  it  is 
all  the  law  allows  as  expensa  lifts.  If  the  jury  may,  "  if  they 
see  fit,"  allow  counsel  fees  and  expenses  as  a  part  of  the 
actual  damages  incurred  by  the  plaintiff,  and  then  the  court 
add  legal  costs  de  incremento,  the  defendants  may  be  truly 
said  to  be  in  misericordia,  being  at  the  mercy  both  of  court 

3 


194  CASES  ON  DAMAGES. 

and  jury.  Neither  the  common  law,  nor  the  statute  law  of 
an}'  State,  so  far  as  we  are  informed,  has  invested  the  jury 
with  this  power  or  privilege.  It  has  been  sometimes  exercised 
by  the  permission  of  courts,  but  its  results  have  not  been 
such  as  to  recommend  it  for  general  adoption  either  by  courts 
or  legislatures. 

The  only  instance  where  this  power  of  increasing  the 
"  actual  damages"  is  given  by  statute  is  in  the  patent  laws 
of  the  United  States.  But  there  it  is  given  to  the  court  and 
not  to  the  jury.  The  jury  must  find  the  "  actual  damages  " 
incurred  by  the  plaintiff  at  the  time  his  suit  was  brought ; 
and  if,  in  the  opinion  of  the  court,  the  defendant  has  not 
acted  in  good  faith,  or  has  been  stubbornly  litigious,  or  has 
caused  unnecessary  expense  and  trouble  to  the  plaintiff,  the 
court  may  increase  the  amount  of  the  verdict,  to  the  extent 
of  trebling  it.  But  this  penalty  cannot,  and  ought  not,  to  be 
twice  inflicted;  first,  at  the  discretion  of  the  jury,  and  again 
at  the  discretion  of  the  court.  The  expenses  of  the  defend- 
ant over  and  above  taxed  costs  are  usually  as  great  as  those 
of  plaintiff ;  and  yet  neither  court  nor  jury  can  compensate 
him,  if  the  verdict  and  judgment  be  in  his  favor,  or  amerce 
the  plaintiff  pro  f also  clamore  beyond  tax  costs.  Where 
such  a  rule  of  law  exists  allowing  the  jury  to  find  costs  de 
incremento  in  the  shape  of  counsel  fees,  or  that  equally  in- 
definite and  unknown  quantit}*  denominated  (in  the  plain- 
tiff's prayer  for  instruction)  "  &c,"  they  should  be  permitted 
to  do  the  same  for  the  defendant  where  he  succeeds  in  his. 
defence,  otherwise  the  parties  are  not  suffered  to  contend  in 
an  equal  field.  Besides,  in  actions  of  debt,  covenant,  and 
assumpsit,  where  the  plaintiff  alwa}*s  recovers  his  actual 
damages,  he  can  recover  but  legal  costs  as  compensation  for 
his  expenditure  in  the  suit,  and  as  punishment  of  defendant 
for  his  unjust  detention  of  the  debt ;  and  it  is  a  moral  offence 
of  no  higher  order,  to  refuse  to  pay  the  price  of  a  patent  or 
the  damages  for  a  trespass,  which  is  not  wilful  or  malicious, 
than  to  refuse  the  payment  of  a  just  debt.  There  is  no 
reason,  therefore,  why  the  law  should  give  the  plaintiff  such 


POND  v.   HARRIS.  195 

an  advantage  over  the  defendant  in  one  case,  and  refuse  it 
in  the  other.  See  Barnard  v.  Poor,  21  Pickering,  382  ;  and 
Lincoln  v.  the  Saratoga  Railroad,  29  Wendell,  435. 

We  are  of  opinion,  therefore,  that  the  instruction  given 
by  the  court  in  answer  to  the  prayer  of  the  plaintiff,  was 
correct. 


POND  v.  HARRIS. 

Massachusetts,  1873.     113  Mass.  114. 

Contract  to  recover  damages  for  the  revocation  by  the 
defendant  of  an  agreement  to  submit  the  controversies  be- 
tween the  parties  to  arbitration.1 

Devens,  J.  It  is  argued  that,  as  it  is  found  by  the  audi- 
tor's report  and  by  the  jur}-  that  there  was  nothing  due  upon 
these  claims,  the  plaintiff  is  entitled  to  no  damages,  or  at 
most  to  but  nominal  damages,  on  account  of  the  revocation, 
and  that  it  must  be  deemed  that  the  arbitrators  would  have 
come  to  the  result  at  which  the  jury  have  arrived.  But  the 
injury  that  he  has  sustained  by  the  wrongful  act  of  the  defend- 
ant is  that  he  has  been  deprived  of  his  right  to  submit  the 
claims  to  the  tribunal  which  the  parties  had  agreed  upon. 
The  expenses  to  which  he  has  been  subjected  by  reason  of 
his  necessary  preparation  for  a  trial  before  the  arbitrators, 
on  account  of  his  own  loss  of  time  and  trouble,  and  in  employ- 
ing counsel,  taking  depositions,  payments  to  witnesses,  arbi- 
trators, and  expenditures  of  a  similar  nature,  are  proper 
matters  of  claim.  He  is  entitled  to  recover  these  so  far  only 
as  he  has  lost  the  benefit  of  them  by  the  act  of  the  defendant. 
So  far  as  these  preparations  and  expenditures  were  available 
for  the  trial  of  his  cause  before  the  ordinary  legal  tribunals 
to  which  the  revocation  of  the  defendant  compelled  him  to 
resort,  he  is  not  entitled  to  recover,  as  he  has  had  or  might 
have  had  the  benefit  of  them.  Ordinarily,  it  is  true,  as  the 
defendant  argues,  counsel  fees  are  not  recoverable  ;  but  if  the 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


196  CASES  ON  DAMAGES. 

plaintiff  has  been  deprived,  by  the  wrongful  act  of  the  defend- 
ant, of  the  benefit  of  those  services  of  counsel  for  which  he 
had  incurred  expense,  upon  the  former  agreement  for  arbitra- 
tion, inasmuch  as  they  were  expenditures  he  might  properly 
incur,  so  far  as  they  were  suitable,  there  is  no  reason  why  he 
should  not  recover  them  in  this  action.  The  principles  sug- 
gested as  those  upon  which  his  damages  are  to  be  computed, 
have  been  decided  to  be  the  proper  ones  in  several  cases. 

In  Hawley  v.  Hodge,  7  Vt.  237,  the  plaintiff  had  travelled 
four  hundred  miles  to  attend  a  session  of  the  arbitrators; 
had  employed  and  paid  counsel,  and  had  paid  the  arbitrator ; 
and  it  was  held,  in  an  action  by  him  for  damages,  that  where 
a  party  revokes  a  submission,  he  must  pay  all  damages  occa- 
sioned thereby,  including  the  cost  and  expenses  which  the 
party  had  been  subjected  to  in  preparing  for  trial,  to  which 
he  would  not  have  been  subjected  but  for  the  submission, 
and  which  he  could  not  recover  in  any  other  way.  See 
also  Rowley  v.  Young,  3  Day,  118  ;  Blaisdell  v.  Blaisdell,  14 
N.  H.  78. 

For  the  trouble  and  expense  which  the  plaintiff  had  been  at 
in  making  the  contract,  he  would  not,  however,  be  entitled 
to  recover ;  his  damages  must  be  only  for  the  breach  of  the 
contract.  Judgment  for  the  plaintiff. 


RYERSON  v.  CHAPMAN. 

Maine,  1877.    66  Me.  557. 

Peters,  J.1  The  evidence  in  this  case  is  meagre.  Aided 
by  the  briefs  of  counsel,  we  understand  the  facts,  among  other 
things,  to  show  as  follows :  The  defendant,  getting  a  sup- 
posed title  to  a  parcel  of  land  by  levy,  conveyed  the  land  to 
the  plaintiff  by  a  warrantee  deed.  The  plaintiff  had  been  in 
an  undisturbed  occupation  of  the  land  under  his  deed  for  about 
fifteen  years,  when  his  possession  was  invaded  by  one  Carle- 
1  Part  of  the  opinion  is  omitted. 


RYERSON  v.  CHAPMAN.  197 

ton,  who  claimed  title  to  the  land  upon  the  ground  that  the 
lev}'  under  which  the  defendant  acquired  the  land,  was  defec- 
tive and  void.  The  plaintiff  sued  Carleton,  and  Carleton 
sued  the  plaintiff,  in  actions  of  trespass,  and  several  other 
suits  followed  between  them.  While  all  the  suits  were  pend- 
ing, one  of  them  was  carried  up  to  decide  the  question  of  title 
to  the  land,  and  Carleton  prevailed,  as  will  be  seen  in  Carle- 
ton v.  Ryerson,  59  Maine,  438.  After  this,  the  defendant 
paid  to  the  plaintiff  all  the  costs  and  counsel  fees  incurred 
in  the  defence  of  that  action,  and  also  paid  him  the  value  of 
the  land  from  which  he  was  evicted,  but  refuses  to  pay  the 
damages,  costs,  and  expenses  incurred  in  the  other  actions. 
Several  actions  were  brought  against  the  plaintiff,  and  there 
were  two  in  his  favor.  Several  questions  of  law  and  fact  are 
referred  to  us  and  we  have,  by  agreement,  jury  powers  to  aid 
us  in  deciding  them.   .   .  . 

The  principal  question  of  law  in  the  case  is,  whether  the 
plaintiff  is  entitled  to  recover,  under  the  warranty  of  title, 
any  more  of  the  costs  and  expenses  of  litigation  paid  by  him 
than  what  grew  out  of  a  single  suit.  The  defendant  maintains 
that  he  cannot  recover  more,  upon  the  supposition  that  one 
litigation  was  sufficient  to  settle  the  question  of  title.  It  is 
our  judgment  that  the  plaintiff  can  recover  more  than  the 
expenses  of  litigating  one  suit.  .  .  . 

The  covenant  of  warranty  amounts  to  an  agreement  of  in- 
demnity. The  foundation  of  a  claim  for  damages  under  it,  must 
be  that  an  eviction,  or  something  equivalent  thereto,  has  prop- 
erly taken  place.  The  covenantee,  who  has  been  evicted,  is 
entitled  to  have  repaid  to  him  all  reasonable  outlay  which  he' 
in  good  faith  expends  for  the  assertion  or  defence  of  the  title 
warranted  to  him.  Weston,  C.J„  says  (Swett  v.  Patrick, 
12  Maine,  9,  10)  :  "He  (covenantee)  was  justified  in  making 
every  fair  effort  to  retain  the  land."  If  he  is  assaulted  with 
ever  so  many  suits,  he  must  defend  them,  unless  it  is  clear, 
that  a  defence  would  avail  nothing.  If  he  defends  but  one, 
and  lets  the  others  go  by  default,  he  might  get  himself  into 
inextricable  trouble.     It  is  as  essential  that  he  should  defend 


198  CASES  ON  DAMAGES. 

all  the  suits  as  an}*  one  of  them.  A  defender  of  a  walled  city 
might  as  well  plant  all  his  means  of  defence  at  a  single  gate, 
and  leave  all  the  others  undefended,  to  be  entered  by  the 
enemy. 

The  covenantee  becomes  the  agent  of  the  covenantor,  in 
making  a  defence  against  suits. '  He  should  do  for  his  war- 
rantor what  the  warrantor  should  do  for  himself,  if  in  posses- 
sion. It  is  no  more  expensive  for  the  warrantor  to  defend  suits 
brought  against  his  agent,  than  suits  against  himself,  and  the 
presumption  is,  that  he  would  have  been  a  part}-  to  the  same 
litigations,  had  he  remained  in  possession.  But  the  agent 
must  act  cautiously  and  reasonably.  He  has  no  right .  to 
"  inflame  his  own  account"  (11  A.  &  E.  28),  nor  indulge  in 
merely  quarrelsome  cases. 

It  follows,  therefore,  that  the  plaintiff  may  recover  for  the 
damages  and  costs  and  expenses  of  suits  brought  against  him, 
and  also  for  the  costs  and  expenses  of  suits  brought  by  him, 
affecting  the  title  to  the  estate.  Each  suit  may  have  been  a 
part  of  the  means  by  which  the  title  was  sought  to  be  defended. 
The  case  in  108  Mass.  270  (Merritt  v.  Morse),  cited  by  the 
plaintiff,  seems  quite  identical  with  this  case.  We  have  care- 
fully considered  the  able  argument  of  the  counsel  for  the  de- 
fendant, but  cannot  concur  in  it.  The  cases  cited  by  him  upon 
this  point,  do  not  go  far  enough  to  sustain  his  position.  The 
language  used  in  them  is  appropriate  enough  to  the  idea  of 
one  suit  only  being  necessary  to  settle  a  question  of  title,  but 
in  such  cases  the  damages  and  costs  of  one  suit  only  were 
involved.  None  of  them  decide,  or  undertake  to  decide,  the 
question  presented  here. 

The  defendant  contends  that  he  is  not  liable  for  the  costs 
and  counsel  fees  in  some  of  the  actions,  of  the  pendency  of 
which  he  was  not  notified.  But  notice  was  not  necessary  to 
put  upon  him  such  a  liability.  Without  a  notice,  the  plaintiff 
can  recover  his  damages  caused  by  the  failure  of  the  title 
warranted  to  him.  And,  in  this  State,  the  costs  of  the  former 
action  and  the  expenses  of  counsel  fees  attending  it,  whether 
in  asserting  or  defending  the  title,  are  a  portion  of  the  dam- 


RYERSON   v.    CHAPMAN.  199 

ages  recoverable.  The  want  of  notice  of  a  suit  to  the  war- 
rantor, undoubtedly  increases  the  burden  of  proof  that  falls 
on  the  warrantee.  In  such  case  he  would  be  held  to  prove 
that  the  actions  brought  against  him  were  reasonably  de- 
fended, and  that  the  costs  were  fairly  and  necessarily 
incurred.  And  as  to  the  costs  in  cases  in  which  the  war- 
rantee was  plaintiff  instead  of  defendant,  and  also  as 
respects  counsel  fees  and  expenses  in  cases  where  he  was 
either  plaintiff  or  defendant,  and  whether  the  covenantor 
was  notified  or  not,  from  the  nature  of  things,  the  burden  is 
on  the  covenantee  to  show  such  items  to  be  reasonable  and 
proper  claims,  where  the  grantor  does  not  appear  in  the  suits. 
The  case  of  Swett  v.  Patrick,  12  Maine,  9,  does  not  decide 
that  such  items  are  not  recoverable  where  no  notice  was  given, 
but  gives  the  fact  of  notice  as  an  additional  or  conclusive 
reason  why  the}'  should  be  included  in  the  damages.  We 
are  aware  that  it  is  maintained  in  many  cases  that  a  judgment 
against  a  warrantee  is  prima  facie  evidence  of  both  eviction 
and  the  infirmity  of  the  title,  even  though  the  warrantor  had 
no  notice  of  the  former  litigation,  in  a  suit  by  the  warrantee 
against  the  warrantor  upon  the  covenants  in  the  deed.  But 
we  think  the  law  has  never  been  so  regarded  in  this  State. 
Such  judgment  "  is  legally  admissible  to  prove  the  act  of 
eviction,  but  not  the  superior  title  of  the  recovering  party." 
Hardy  v.  Nelson,  27  Maine,  525,  530.  If  the  grantor  has 
notice  of  the  former  suit  and  an  opportunity  to  defend,  then, 
in  the  absence  of  fraud  or  collusion,  the  judgment  in  the  for- 
mer suit  is  conclusive  against  him.  But  we  do  not  think  it 
reasonable  that  a  grantor  should  be  required  to  prove  that  a 
judgment  was  wrongfully  recovered  against  his  grantee,  when 
he  had  no  notice  to  be  heard.  Veazie  v.  Penobscot  Railroad, 
49  Maine,  119  ;  Thurston  v.  Spratt,  52  Maine,  202  ;  Coolidge 
v.  Brigham,  5  Met.  68  ;  Chamberlain  v.  Preble,  11  Allen,  370 ; 
Rawle  on  Cov.  122  et  seq. ;  Smith  v.  Compton,  3  B.  &  Ad. 
407. 


200  CASES   ON  DAMAGES. 


WESTFIELD  v.  MAYO. 

Massachusetts,  1877.     122  Mass.  100. 

Tort  to  recover  the  amount  of  a  judgment  paid  by  the 
plaintiff  to  Mary  J.  Hanehett  for  injuries  sustained  by  her 
upon  a  highway  which  the  plaintiff  was  bound  to  keep  in 
repair;  and  also  $150,  the  expenses  of  the  suit  in  which  that 
judgment  was  recovered.1 

Lord,  J.  The  remaining  question  in  this  case  is,  whether 
the  plaintiff  shall  recover  the  amount  paid  as  counsel  fees  in 
the  suit  against  the  town,  which,  it  is  agreed,  are  reasonable, 
if  in  law  they  are  to  be  allowed.  The  defendant  was  notified 
by  the  town  of  the  pendency  of  the  original  suit,  and  was 
requested  to  defend  it,  which  he  declined  to  do. 

The  difficulty  is  not  in  stating  the  rule  of  damages,  but  in 
determining  whether  in  the  particular  case  the  damages 
claimed  are  within  the  rule.  Natural  and  necessary  conse- 
quences are  subjects  of  damages  ;  remote,  uncertain  and  con- 
tingent consequences  are  not.  "Whether  counsel  fees  are 
natural  and  necessary,  or  remote  and  contingent,  in  the  par- 
ticular case,  we  think  may  be  determined  upon  satisfactory 
principles  ;  and,  as  a  general  rule,  when  a  party  is  called  upon  i 
to  defend  a  suit,  founded  upon  a  wrong,  for  which  he  is  held  |  \^ 
responsible  in  law  without  misfeasance  on  his  part,  but  be- 
cause of  the  wrongful  act  of  another,  against  whom  he  has  a 
remedy  over,  counsel  fees  are  the  natural  and  reasonably 
necessary  consequence  of  the  wrongful  act  of  the  other,  if  he 
has  notified  the  other  to  appear  and  defend  the  suit.  When, 
however,  the  claim  against  him  is  upon  his  own  contract,  or 
for  his  own  misfeasance,  though  he  may  have  a  remedy  against 
another  and  the  damages  recoverable  may  be  the  same  as  the 
amount  of  the  judgment  recovered  against  himself,  counsel 

1  The  statement  of  facta  and  the  opinion  of  Morton,  J.,  on  anothei 
point  are  omitted. 


WESTFIELD   v.   MAYO.  201 

fees  paid  in  defence  of  the  suit  against  himself  are  not 
recoverable. 

The  decision  in  Reggio  v.  Braggiotti,  7  Cush.  166,  is  ad- 
verse to  the  allowance  of  counsel  fees,  as  falling  within  the 
latter  class.  In  that  case  the  plaintiff  sold  to  Henshaw, 
Ward  &  Co.  an  article  with  a  warranty  that  it  was  known  in 
commerce  as  opium ;  and  Henshaw,  Ward  &  Co.  recovered 
damages  against  the  plaintiff  upon  his  warranty.  The}',  hav- 
ing made  the  warranty,  were  responsible  for  damages  result- 
ing from  the  breach  of  their  own  contract.  The  defendant 
in  that  case  had  made  a  similar  warranty  to  the  plaintiffs, 
and  although  they  were  liable  to  him  upon  that  warranty,  it 
was  held  that  they  were  not  liable  for  counsel  fees  paid  in 
defending  their  own  warrant}'.  Although  the  reasons  for 
that  decision,  which  are  very  briefly  given,  are  not  the  same 
which  we  now  assign  in  support  of  it,  the  decision  itself  is 
sustained  by  the  authorities. 

In  Baxendale  v.  London,  Chatham  &  Dover  Railway,  L.  R. 
10  Ex.  35,  it  appeared  that  one  Harding  had  contracted  with 
the  plaintiff  to  convey  certain  valuable  pictures  from  London 
to  Paris.  The  plaintiff,  by  another  contract,  agreed  with 
the  defendant  for  the  carriage  by  the  defendant  of  the  same 
pictures  to  the  same  destination.  The  pictures  were  damaged 
in  the  transportation.  Harding  brought  his  action  against 
the  plaintiff  for  damage  to  the  pictures  upon  the  contract 
between  them  and  recovered.  The  plaintiff  then  brought  his 
action  against  the  defendant  for  breach  of  its  contract  with 
him  ;  and  the  defendant  denied  its  liability,  but  being  held 
liable,  the  question  arose  whether  counsel  fees  which  the 
plaintiff  had  expended  in  defence  of  Harding's  claim  upon 
him  should  be  added  as  damages  to  the  amount  recovered  by 
Harding ;  and  it  was  held  that  they  could  not  be. 

In  Fisher  w.Val  de  Travers  Asphalte  Co.,  1  C.  P.  D.  511, 
the  same  result  was  reached.  In  that  case  the  plaintiff  made 
a  contract  with  a  tramway  company  to  construct  a  tramway 
in  a  workmanlike  manner  with  Val  de  Travers  asphalte  and 
concrete,  and  to  keep  the  same  in  good  order  for  twelve 


202  CASES  ON  DAMAGES. 

months.  The  plaintiff  also  contracted  with  the  defendant  to 
construct  for  him  the  same  tramway  and  with  like  warranty. 
The  plaintiff,  however,  did  not  make  the  contract  with  the 
defendant  to  construct  the  tramway  for  himself,  but  he  had 
agreed  to  construct  it  for  the  Metropolitan  Tramway  Com- 
pany, which  was  the  owner  of  the  tramway.  One  Hicks  sus- 
tained an  injury  by  reason  of  the  defective  condition  of  the 
way,  and  commenced  proceedings  against  the  Metropolitan 
Tramway  Company  for  damages,  and  the  Metropolitan  Tram- 
way Company  notified  the  plaintiff,  and  the  plaintiff  notified 
the  defendant.  The  defendant  declined  to  interfere.  The 
plaintiff,  however,  took  upon  himself  the  defence  of  the  suit 
against  the  tramway  company,  and  adjusted  it;  and  the  set- 
tlement was  found  to  be  a  reasonable  and  proper  one.  In 
his  action  against  the  defendant,  he  contended  that  his  coun- 
sel fees  incurred  in  the  previous  proceedings  should  be  added 
to  the  amount  paid  to  Hicks.  Brett  and  Lindley,  JJ.,  in 
their  several  opinions,  felt  themselves  bound  by  the  decision 
in  Baxendale  v.  London,  Chatham  &  Dover  Railway,  above 
cited,  but  thought  that,  if  they  were  not  precluded  by  that 
decision,  they  should  have  great  difficulty  in  refusing  to  allow 
counsel  fees  in  addition  to  the  amount  paid  as  damages ;  but 
Lord  Coleridge,  C.J.,  while  holding  that  that  decision  was 
conclusive,  was  not  prepared  to  say  that  it  was  not  right  in 
principle.  And  he  uses  this  very  suggestive  language  :  "  The 
tramway  company  contract  with  Fisher;  Fisher  contracts 
with  the  defendants,  and  the  claim  of  Hicks  arises  from  neg- 
ligence of  the  latter.  Are  the  defendants  to  be  liable  to 
three  sets  of  costs,  because  the  actions  may  have  been  rea- 
sonably defended?  If  they  are,  the  consequences  may  be 
serious.  If  not,  at  which  link  of  the  chain  are  the  costs  to 
drop  out?" 

Following  this  suggestion,  if,  in  the  case  of  Reggio  v.  Brag- 
giotti,  there  had  been  ten  successive  sales  instead  of  two,  and 
each  with  the  same  implied  warranty,  and  successive  suits 
had  been  brought  by  the  ten  successive  purchasers,  each 
against  his  warrantor,  would  the  first  seller  be  liable  for  such 


WESTFIELD   v.  MAYO.  203 

accumulation  of  counsel  fees  upon  his  contract  of  warranty? 
If  not,  in  the  pertinent  language  just  quoted,  "  at  which 
link  of  the  chain  are  the  costs  to  dropout?"  In  each  of 
these  cases,  it  will  be  observed  that  the  counsel  fees  were 
paid  in  defending  a  suit  upon  the  party's  own  contract. 

In  the  present  case,  the  plaintiff  was  not  compelled  to  incur 
the  counsel  fees  by  reason  of  any  misfeasance,  or  of  any  con- 
tract of  its  own,  but  was  made  immediately  liable  by  reason 
of  the  wrongdoing  of  the  defendant.  There  seems  therefore 
to  be  no  ground,  in  principle,  by  which  it  should  be  precluded 
from  recovering  as  a  part  of  its  damages  the  expenses  rea- 
sonably and  properly  incurred  in  consequence  of  the  wrong- 
doing of  the  defendant.  Within  this  rule  a  master,  who  is 
immediately  responsible  for  the  wrongful  acts  of  a  servant, 
though  there  is  no  misfeasance  on  his  part,  might  recover 
against  such  servant  not  only  the  amount  of  the  judgment 
recovered  against  him,  but  his  reasonable  expenses  including 
counsel  fees,  if  notified  to  defend  the  suit.  It  may  be  said 
in  that  case,  as  in  this,  that  there  may  be  a  technical  misfeas- 
ance, or  rather  nonfeasance,  in  not  guarding  more  carefully 
the  conduct  of  the  servant,  or  in  [not]  watching  for  obstructions 
in  the  street ;  but  no  negligence  is  necessary  to  be  proved  in 
either  case  as  matter  of  fact ;  the  party  is  directly  liable  be- 
cause of  the  wrong  of  another,  whatever  diligence  he  may 
have  himself  exercised.  It  does  not,  however,  apply  to  cases 
where  one  is  defending  his  own  wrong  or  his  own  contract, 
although  another  may  be  responsible  to  him.1  .  .  . 

If  a  party  is  obliged  to  defend  against  the  act  of  another, 
against  whom  he  has  a  remedy  over,  and  defends  solely  and  ex- 
clusively the  act  of  such  other  party,  and  is  compelled  to  defend 
no  misfeasance  of  his  own,  he  may  notify  such  party  of  the 
pendency  of  the  suit  and  may  call  upon  him  to  defend  it ;  if 
he  fails  to  defend,  then,  if  liable  over,  he  is  liable  not  only 
for  the  amount  of  damages  recovered,  but  for  all  reasonable 
and  necessary  expenses  incurred  in  such  defence.     And  this 

1  The  learned  judge  then  considered  the  case  of  Lowell  v.  Boston  & 
Lowell  Railroad,  23  Tick.  24. 


204  CASES  ON  DAMAGES. 

rule,  while  consistent  with  legal  principles,  is  sanctioned  by 
the  highest  equitable  considerations.  It'  the  party  ultimately 
liable  for  his  exclusive  wrongdoing  has  notice  that  an  inter- 
mediate party  is  sued  for  the  wrong  done  by  him,  it  is  right, 
legally  and  equitably,  that  he  take  upon  himself  at  once  the 
defence  of  his  own  act,  thereby  settling  the  whole  matter  in 
a  single  suit ;  if  he  requires  the  intermediate  party  to  de- 
fend, there  is  no  rule  of  law  or  of  morals  which  should  relieve 
him  from  the  consequences  of  his  additional  neglect  of  duty. 
Upon  the  whole,  therefore,  we  are  entirely  satisfied  that  the 
exceptions  must  be  overruled  and  judgment  entered  for  the 
plaintiff  for  the  larger  sum,  which  includes  what,  it  is  agreed, 
are  reasonable  counsel  fees. 

Exceptions  overruled* 


CHAPTER  VIII. 

CERTAINTY. 


RICE  v.  RICE. 

Michigan,  1895.     62  N.  W.  Rep.  833. 

Plaintiff  recovered  verdict  and  judgment  against  the  de- 
fendant, her  father-in-law,  for  the  alienation  of  her  husband's 
affections. 

Grant,  J.1  The  defendant  requested  the  court  to  instruct 
the  jury  that  there  was  no  testimony  entitling  the  plaintiff  to 
recover  more  than  nominal  damages,  and  that  there  were  no 
facts  upon  which  they  could  determine  what,  if  an}*,  loss  she 
had  sustained,  either  by  assistance,  loss  of  society,  or  sup- 
port by  her  husband.  This  request,  as  a  whole,  was  properly 
refused,  because  it  left  out  entirely  the  damages  resulting 
from  mental  anguish,  mortification,  and  injured  feelings.  In 
those  actions  where  damages  may  be  awarded  for  these  and  for 
loss  of  society,  the  amount  of  damages  lies  in  the  sound  dis- 
cretion of  the  jury.  They  are  not  capable  of  accurate  meas- 
urement, and  it  is  not  necessary  to  introduce  any  evidence 
of  value.  When  the  jury  have  before  them  the  social  standing 
and  character  of  the  parties,  and  the  circumstances  surround- 
ing the  wrong  done,  they  have  all  that  is  proper  and  neces- 
sary upon  which  to  find  a  verdict.  Had  the  defendant  re- 
quested the  court  to  instruct  the  jury  that  there  was  no 
evidence  upon  which  they  could  find  a  verdict  for  loss  of 
support  and  maintenance,  it  would  have  been  error  to  refuse 
it,  because  there  was  no  evidence  of  the  value  of  such  sup- 
port. The  sole  evidence  was  the  fact  that  they  lived  to- 
gether for  six  months  in  a  house  owned  by  defendant.  The 
1  Part  of  the  opinion  is  omitted. 


206  CASES  ON  DAMAGES. 

court  instructed  them  that  she  was  entitled  to  recover  for 
mental  anguish  aud  suffering,  mortification,  and  embarrass- 
ment for  the  loss  of  her  husband's  society,  and  for  the  loss  of 
his  support  and  maintenance.  It  is  true  that  the  court  said 
to  them  that  "  all  these  elements  of  damage,  except  the  loss 
of  support  and  maintenance,  are  such  that  it  is  not  possible 
to  figure  them  on  any  mathematical  basis."  But  he  did  not 
instruct  them  that  there  was  no  basis  afforded  by  the  evidence 
upon  which  the}'  could  determine  the  damages  resulting  from 
loss  of  support  and  maintenance.  The  verdict  ($3,000)  was 
large,  considering  the  condition  of  the  parties,  and  we  cannot 
say  that  the  jury  did  not  consider  and  allow  for  the  loss  of 
support.  The  judgment  must  be  set  aside,  and  a  new  trial 
ordered.1 


GREENE  v.  GODDARD. 

Massachusetts,  1845.     9  Met.  212. 

Russell  &  Co.,  the  plaintiffs,  a  firm  of  commission  mer- 
chants in  China,  drew  bills  on  Goddard's  account  upon  Wiggin 
&  Co.,  in  London  ;  Goddard  agreeing  that  they  should  be 
paid  at  maturity.  Wiggin  &  Co.  failed  before  maturity  of  the 
bills ;  whereupon  one  Forbes,  a  member  in  Boston  of  the 
firm  of  Russell  &  Co.,  arranged  with  Baring  Brothers  &  Co., 
their  London  correspondents,  to  take  up  the  bills  at  maturity 
supra  protest.  Baring  Brothers  did  so,  holding  as  security 
goods  consigned  to  them  by  Russell  &  Co.  If  they  had  not 
taken  up  these  bills,  they  would  at  once  upon  receipt  of  the 
goods  have  advanced  to  Forbes,  or  to  Russell  &  Co.  in  China, 
fifty  or  sixty  per  cent,  of  the  value  of  the  goods.  Goddard 
eventually  paid  Baring  Brothers  the  amount  of  the  bills. 
Russell  &  Co.  claim  damages  (inter  alia)  because  of  the 
withholding  of  advances  by  Baring  Brothers.8 

1  See  Leeds  v.  Metropolitan  Gas-Light  Co.,  ante,  p.  53. 

2  This  short  statement  of  such  facts  as  are  necessary  for  the  decision 
of  the  point  here  considered  is  substituted  for  the  statement  of  the  re* 
porter.     Part  of  the  opinion  is  omitted. 


GREENE  v.   GODDARD.  207 

Hubbard,  J.  In  regard  to  the  claim  for  losses  alleged  by 
the  plaintiffs  to  have  been  suffered  by  thern  in  consequence  of 
the  withholding  of  advances  by  Baring  Brothers  &  Co.  on 
the  goods  consigned,  they  having  retained  them  as  a  security 
for  their  reimbursement,  we  think  the  claim  canuot  be  sus- 
tained. The  plaintiffs  are  entitled  to  recover  for  the  loss 
directly  and  necessarily  incurred  by  them  in  providing  for  the 
payment  of  these  bills  ;  but  they  cannot  claim  compensation 
for  the  loss  of  those  incidental  benefits  which  they  might  have 
derived  from  the  use  of  their  money.  Speculative  damages 
(sometimes  so  called)  are  not  favored  in  law ;  and  the  actual 
damage,  arising  out  of  breach  of  contract  for  the  non-payment 
of  money,  is  usually  measured  by  the  interest  of  money.  In 
this  case,  the  alleged  damage  is,  that  the  plaintiffs  could  have  1 
availed  themselves  of  the  high  rate  of  exchange,  or  of  other 
advantages,  if  they  had  not  been  deprived  of  the  use  of  the 
money  which  was  detained  from  them,  and,  as  they  say, 
through  the  default  of  the  defendant.  But,  viewing  the  fact8 
in  the  most  favorable  light  for  the  plaintiffs,  their  loss  is  but  \ 
suppositive.  In  the  use  of  the  mono}-,  instead  of  realizing  great 
profits,  they  might  have  encountered  difficulties  and  sustained 
injuries  unforeseen  at  the  time,  and  have  suffered,  like  thou- 
sands of  others.  Theirs  is  not  a  loss,  in  the  just  sense  of  the 
term,  but  the  deprivation  of  an  opportunity  for  making  monej", 
which  might  have  proved  beneficial,  or  might  have  been  ruin- 
ous ;  and  it  is  of  that  uncertain  character,  which  is  not  to  be 
weighed  in  the  even  balances  of  the  law,  nor  to  be  ascertained 
by  well  established  rules  of  computation  among  merchants. 
We  are  to  bear  in  mind  that  the  propert}7  held  by  the  Barings 
consisted  of  goods  consigned  to  them  by  the  house  in  Canton, 
and  that,  by  the  usage  between  them,  the  consignees,  on  the 
receipt  of  the  goods,  and  sometimes  on  receipt  of  the  bills  of 
lading  and  shipping  documents,  sent  forward  remittances  to 
Russell  &  Co.  at  Canton,  either  in  specie  or  bills  on  India,  or 
in  goods,  when  so  directed,  to  the  amount  of  50  or  60  per 
cent  on  the  value  of  the  respective  consignments.  But  no 
evidence  is  furnished  by  the  plaintiffs,  to  show  that  such  re- 


208  CASES  ON  DAMAGES. 

mittances  would  have  resulted  in  a  profit  to  them,  or  that 
the}-  suffered,  in  any  way,  by  their  being  retained.  Nor  does 
it  follow  that  the  consignees  would  have  felt  authorized  to 
answer  the  bills  of  Mr.  Forbes,  one  of  the  members  of  the 
house,  to  divert  the  funds  to  America,  without  the  approba- 
tion of  the  house  itself.  And  judging  from  the  correspon- 
dence, Mr.  Forbes  himself  would  have  been  equally  unwilling 
to  make  use  of  those  funds  here,  even  should  the  Barings 
have  consented  to  charge  his  drafts  to  that  account ;  lest  he 
might  injure  the  standing  of  his  house  in  India,  by  diverting 
money  that  would  be  payable  to  the  owners  of  the  goods  in 
cases  where  the  plaintiffs  were  merely  consignees  and  not 
owners.  To  sustain  such  a  claim  as  this  would  be  to  sanction 
principles  not  supported  by  any  decisions  with  which  we  are 
acquainted,  and  instead  of  making  persons  sustain  the  direct 
loss  arising  from  their  neglect  of  engagements,  it  would  be  to 
expose  them  to  hazards  never  contemplated,  and  to  affect 
them  b}r  uncertain  speculations  in  the  profits  of  which  they 
could  have  no  participation,  while  at  the  same  time  they 
would  be  made  insurers  of  such  profits  to  their  creditors.  See 
Hayden  v.  Cabot,  17  Mass.  169.  This  ground  of  claim  for  dam- 
ages, therefore,  on  the  part  of  the  plaintiffs,  must  be  rejected. 

GRIFFIN  v.   COLVER. 

New  York,  1858.     16  N.  Y.  489. 

Selden,  J.  The  only  point  made  by  the  appellants  is, 
that  in  estimating  their  damages  on  account  of  the  plaintiff's 
failure  to  furnish  the  engine  b}T  the  time  specified  in  the  con- 
tract, they  should  have  been  allowed  what  the  proof  showed 
they  might  have  earned  bj*  the  use  of  such  engine,  together 
with  their  other  machinery,  during  the  time  lost  by  the  dela}*. 
This  claim  was  objected  to,  and  rejected  upon  the  trial  as 
coming  within  the  rule  which  precludes  the  allowance  of 
profits,  by  way  of  damages,  for  the  breach  of  an  executory 
contract. 


GRIFFIN  v.  COLVER.  209 

To  determine  whether  this  rule  was  correctly  applied  by 
the  referee,  it  is  necessary  to  recur  to  the  reason  upon  which 
it  is  founded.  It  is  not  a  primary  rule,  but  is  a  mere  deduc- 
tion from  that  more  general  aud  fundamental  rule  which 
requires  that  the  damages  claimed  should  in  all  cases  be 
shown,  by  clear  and  satisfactory  evidence,  to  have  been 
actually  sustained.  It  is  a  well  established  rule  of  the  com- 
mon law  that  the  damages  to  be  recovered  for  a  breach  of 
contract  must  be  shown  with  certainty,  and  not  left  to  specu- 
lation or  conjecture  ;  and  it  is  under  this  rule  that  profits  are 
excluded  from  the  estimate  of  damages  in  such  cases,  and 
not  because  there  is  anything  in  their  nature  which  should 
per  se  prevent  their  allowance.  Profits  which  would  cer- 
tainly have  been  realized  but  for  the  defendant's  default 
are  recoverable ;  those  which  are  speculative  or  contingent 
are  not. 

Hence,  in  an  action  for  the  breach  of  a  contract  to  trans- 
port goods,  the  difference  between  the  price,  at  the  point 
where  the  goods  are  and  that  to  which  the}'  were  to  be  trans- 
ported, is  taken  as  the  measure  of  damages  ;  and  in  an  action 
against  a  vendor  for  not  delivering  the  chattels  sold,  the 
vendee  is  allowed  the  market  price  upon  the  day  fixed  for 
the  delivery.  Although  this,  in  both  cases,  amounts  to  an 
allowance  of  profits,  yet,  as  those  profits  do  not  depend  upoiv 
any  contingency,  their  recovery  is  permitted.  It  is  regarded 
as  certain  that  the  goods  would  have  been  worth  the  estab- 
lished market  price,  at  the  place  and  on  the  day  when  and 
where  the}'  should  have  been  delivered. 

On  the  other  hand,  in  cases  of  illegal  capture,  or  of  the 

insurance  of  goods  lost  at  sea,  there  can  be  no  recovery  for 

the  probable  loss  of  profits  at  the  port  of  destination.     The 

principal  reason  for  the  difference  between  these  cases  and 

that  of  the  failure  to  transport  goods  upon  land  is,  that  in 

the  latter  case   the  time  when  the  goods  should  have  been 

delivered,  and  consequently  that  when  the  market  price  is  to 

be  taken,  can  be  ascertained  with  reasonable  certainty  ;  while 

in  the  former  the  fluctuation  of  the  markets  and  the  contin- 

14 


210  CASES  ON  DAMAGES. 

gencics   affecting  the  length   of  the  voyage  render  every 
calculation  of  profits  speculative  and   unsafe. 

There  is  also  an  additional  reason,  viz.,  the  difficulty  of 
obtaining  reliable  evidence  as  to  the  state  of  the  markets  in 
foreign  ports ;  that  these  are  the  true  reasons  is  shown  by 
the  language  of  Mr.  Justice  Story,  in  the  case  of  the  Schoonei 
Lively,  1  Gallis.  315,  which  was  a  case  of  illegal  capture. 
He  says:  "Independent,  however,  of  all  authority,  I  am 
satisfied  upon  principle  that  an  allowance  of  damages,  upon 
the  basis  of  a  calculation  of  profits,  is  inadmissible.  The  rule 
would  be  in  the  highest  degree  unfavorable  to  the  interests  of 
the  community.  The  subject  would  be  involved  in  utter 
uncertainty.  The  calculation  would  proceed  upon  contin- 
gencies, and  would  require  a  knowledge  of  foreign  markets 
to  an  exactness  in  point  of  time  and  value  which  would 
sometimes  present  embarrassing  obstacles.  Much  would 
depend  upon  the  length  of  the  voyage  and  the  season  of 
the  arrival ;  much  upon  the  vigilance  and  activity  of  the 
master,  and  much  upon  the  momentary  demand.  After 
all,  it  would  be  a  calculation  upon  conjectures  and  not  upon 
facts." 

Similar  language  is  used  in  the  cases  of  the  Amiable  Nancy, 
3  Wheat.  546,  and  L'Amistad  de  Rues,  5  Wheat.  385. 
Indeed,  it  is  clear  that  whenever  profits  are  rejected  as  an 
item  of  damages,  it  is  because  they  are  subject  to  too  many 
contingencies,  and  are  too  dependent  upon  the  fluctuations 
of  markets  and  the  chances  of  business,  to  constitute  a  safe 
criterion  for  an  estimate  of  damages.  This  is  to  be  inferred 
from  the  cases  in  our  own  courts.  The  decision  in  the  case 
of  Blanchard  v.  Ely,  21  Wend.  342,  must  have  proceeded 
upon  this  ground,  and  can,  as  I  apprehend,  be  supported 
upon  no  other.  It  is  true  that  Judge  Cowen,  in  giving  his 
opinion,  quotes  from  Pothier  the  following  rule  of  the  civil 
law,  viz. :  "In  general,  the  parties  are  deemed  to  have 
contemplated  only  the  damages  and  injury  which  the  creditor 
might  suffer  from  the  non-performance  of  the  obligations  in 
respect  to  the  particular  thing  which  is  the  object  of  it,  and 


GRIFFIN   v.   COLVER.  211 

not  such  as  may  have  been  accidentally  occasioned  thereby 
in  respect  to  his  own  (other)  affairs."  But  this  rule  bad  no 
application  to  the  case  then  before  the  court.  It  applies  only 
to  cases  where,  by  reason  of  special  circumstances  having  no 
necessary  connection  with  the  contract  broken,  damages  are 
sustained  which  would  not  ordiuarily  or  naturally  flow  from 
such  breach :  as  where  a  party  is  prevented  by  the  breach  of 
one  contract  from  availing  himself  of  some  other  collateral 
and  independent  contract  entered  into  with  other  parties,  or 
from  performing  some  act  in  relation  to  his  own  business  not 
necessariby  connected  with  the  agreement.  An  instance  of 
the  latter  kind  is  where  a  Canon  of  the  church,  by  reason  of 
the  non-delivery  of  a  horse  pursuant  to  agreement,  was 
prevented  from  arriving  at  his  residence  in  time  to  collect 
his  tithes. 

In  such  cases  the  damages  sustained  are  disallowed,  not 
because  they  are  uncertain,  nor  because  they  are  merely 
consequential  or  remote,  but  because  they  cannot  be  fairly 
considered  as  having  been  within  the  contemplation  of  the 
parties  at  the  time  of  entering  into  the  contract.  Hence 
the  objection  is  removed,  if  it  is  shown  that  the  contract  was 
entered  into  for  the  express  purpose  of  enabling  the  part}*  to 
fulfil  his  collateral  agreement,  or  perform  the  act  supposed. 
(Sedg.  on  Dam.,  ch.  3.) 

In  Blanchard  v.  Ely  the  damages  claimed  consisted  in  the 
loss  of  the  use  of  the  very  article  which  the  plaintiff  had 
agreed  to  construct ;  and  were,  therefore,  in  the  plainest 
sense,  the  direct  and  proximate  result  of  the  breach  alleged. 
Moreover,  that  use  was  contemplated  by  the  parties  in  enter- 
ing into  the  contract,  and  constituted  the  object  for  which  the 
steamboat  was  built.  It  is  clear,  therefore,  that  the  rule  of 
Pothier  had  nothing  to  do  with  the  case.  Those  damages 
must  then  have  been  disallowed,  because  they  consisted  of 
profits  depending,  not,  as  in  the  case  of  a  contract  to  trans- 
port goods,  upon  a  mere  question  of  market  value,  but  upon 
the  fluctuations  of  travel  and  of  trade,  and  many  other  con- 
tingencies.    The  citation  by  Judge  Cowen,  of  the  maritime 


212  CASES  ON  DAMAGES. 

cases  to  which  T  have  referred,  tends  to  confirm  this  view. 
This  case,  therefore,  is  a  direct  authority  in  support  of 
the  doctrine  that  whenever  the  profits  claimed  depend 
upon  contingencies  of  the  character  referred  to,  they  are 
not  recoverable. 

The  case  of  Masterton  v.  The  Mayor,  &c,  of  Brooklyn,  7 
Hill,  61,  decides  nothing  in  opposition  to  this  doctrine.  It 
simply  goes  to  support  the  other  branch  of  the  rule,  viz., 
that  profits  are  allowed  where  they  do  not  depend  upon  the 
chances  of  trade,  but  upon  the  market  value  of  goods,  the 
price  of  labor,  the  cost  of  transportation,  and  other  questions 
of  the  like  nature,  which  can  be  rendered  reasonably  certain 
by  evidence. 

From  these  authorities  and  principles  it  is  clear  that  the 
defendants  were  not  entitled  to  measure  their  damages  by 
estimating  what  they  might  have  earned  by  the  use  of  the 
engine  and  their  other  machinery  had  the  contract  been 
complied  with.  Nearly  every  element  entering  into  such  a 
computation  would  have  been  of  that  uncertain  character 
which  has  uniformly  prevented  a  recovery  for  speculative 
profits. 

But  it  by  no  means  follows  that  no  allowance  could  be 
made  to  the  defendants  for  the  loss  of  the  use  of  their 
machinery.  It  is  an  error  to  suppose  that  "the  law  does 
not  aim  at  complete  compensation  for  the  injury  sustained," 
but  "  seeks  rather  to  divide  than  satisfy  the  loss."  (Sedg.  on 
Dam.,  ch.  3.)  The  broad,  general  rule  in  such  cases  is,  that 
the  party  injured  is  entitled  to  recover  all  his  damages,  in- 
cluding gains  prevented  as  well  as  losses  sustained  ;  and  this 
rule  is  subject  to  but  two  conditions  :  The  damages  must  be 
such  as  may  fairly  be  supposed  to  have  entered  into  the  con- 
templation of  the  parties  when  they  made  the  contract,  that 
is,  must  be  such  as  might  naturally  be  expected  to  follow  its 
violation  ;  and  they  must  be  certain,  both  in  their  nature  and 
in  respect  to  the  cause  from  which  they  proceed. 

The  familiar  rules  on  the  subject  are  all  subordinate  to 
these.     For  instance :   That  the  damages  must  flow  directly 


GRIFFIN   v.   COLVER.  213 

and  naturally  from  the  breach  of  contract,  is  a  mere  mode  of 
expressing  the  first ;  and  that  the}'  must  be  not  the  remote 
but  proximate  consequence  of  such  breach,  and  must  not 
be  speculative  or  contingent,  are  different  modifications  of 
the  last. 

These  two  conditions  are  entirely  separate  and  indepen- 
dent, and  to  blend  them  tends  to  confusion  ;  thus  the  dam- 
ages claimed  may  be  the  ordinary  and  natural,  and  even 
necessary  result  of  the  breach,  and  yet,  if  in  their  nature 
uncertain,  they  must  be  rejected;  as  in  the  case  of  Blanchard 
v.  Ely,  where  the  loss  of  the  trips  was  the  direct  and  necessary 
consequence  of  the  plaintiff's  failure  to  perform.  So  they  may 
be  definite  and  certain,  and  clearly  consequent  upon  the  breach 
of  contract,  and  yet  if  such  as  would  not  naturally  flow  from 
such  breach,  but,  for  some  special  circumstances,  collateral 
to  the  contract  itself  or  foreign  to  its  apparent  object,  they 
cannot  be  recovered ;  as  in  the  case  of  the  loss  by  the 
clergyman  of  his  tithes  by  reason  of  the  failure  to  deliver 
the  horse. 

Cases  not  unfrequently  occur  in  which  both  these  condi- 
tions are  fulfilled:  where  it  is  certain  that  some  loss  has 
been  sustained  or  damage  incurred,  and  that  such  loss  or 
damage  is  the  direct,  immediate  and  natural  consequence  of 
the  breach  of  contract,  but  where  the  amount  of  the  damages 
may  be  estimated  in  a  variety  of  ways.  In  all  such  cases  the 
law,  in  strict  conformity  to  the  principles  already  advanced, 
uniformly  adopts  that  mode  of  estimating  the  damages  which 
is  most  definite  and  certain.  The  case  of  Freeman  v.  Clute, 
3  Barb.  S.  C.  R.,  424,  is  a  case  of  this  class,  and  affords  an 
apt  illustration  of  the  rule.  That  case  was  identical  in  many 
of  its  features  with  the  present.  The  contract  there  was  to 
construct  a  steam  engine  to  be  used  in  the  process  of  manu- 
facturing oil,  and  damages  were  claimed  for  delay  in  furnish- 
ing it.  It  was  insisted  in  that  case,  as  in  this,  that  the 
damages  were  to  be  estimated  by  ascertaining  the  amount 
of  business  which  could  have  been  done  by  the  use  of  the 
engine,   and   the   profits  that  would   have   thence   accrued. 


214  CASES  ON  DAMAGES. 

This  claim  was  rejected  by  Mr.  Justice  Harris,  before 
whom  the  cause  was  tried,  upon  the  precise  ground  taken 
here.  But  he  nevertheless  held  that  compensation  was  to  be 
allowed  for  the  "  loss  of  the  use  of  the  plaintiff's  mill  and 
other  machinery."  He  did  not,  it  is  true,  specify  in  terms 
the  mode  in  which  the  value  of  such  use  was  to  be  estimated  ; 
but  as  he  had  previously  rejected  the  probable  profits  of  the 
business  as  the  measure  of  such  value,  no  other  appropriate 
data  would  seem  to  have  remained  but  the  fair  rent  or  hire 
of  the  mill  and  machine^' ;  and  such  I  have  no  doubt  was 
the  meaning  of  the  judge.  Thus  understood,  the  decision  in 
that  case,  and  the  reasoning  upon  which  it  was  based,  were  I 
think  entirely  accurate. 

Had  the  defendants  in  the  case  of  Blanchard  v.  Ely,  supra, 
taken  the  ground  that  they  were  entitled  to  recoup,  not  the 
uncertain  and  contingent  profits  of  the  trips  lost,  but  such 
sum  as  they  could  have  realized  by  chartering  the  boat  for 
those  trips,  I  think  their  claim  must  have  been  sustained. 
The  loss  of  the  trips,  which  had  certainly  occurred,  was  not 
only  the  direct  but  the  immediate  and  necessary  result  of  the 
breach  of  the  plaintiffs'  contract. 

The  rent  of  a  mill  or  other  similar  property,  the  price 
which  should  be  paid  for  the  charter  of  a  steamboat,  or  the 
use  of  machinery,  &c,  &c,  are  not  only  susceptible  of  more 
exact  and  definite  proof,  but  in  a  majority  of  cases  would,  I 
think,  be  found  to  be  a  more  accurate  measure  of  the  dam- 
ages actually  sustained  in  the  class  of  cases  referred  to, 
considering  the  contingencies  and  hazards  attending  the 
prosecution  of  most  kinds  of  business,  than  any  estimate  of 
anticipated  profits  ;  just  as  the  ordinaiy  rate  of  interest  is 
upon  the  whole  a  more  accurate  measure  of  the  damages 
sustained  in  consequence  of  the  non-payment  of  a  debt  than 
any  speculative  profit  which  the  creditor  might  expect  to 
realize  from  the  use  of  the  money.  It  is  no  answer  to  this 
to  say  that,  in  estimating  what  would  be  the  fair  rent  of  a 
mill,  we  must  take  into  consideration  all  the  risks  of  the 
business   in  which   it  is  to  be  used.     Rents  are  graduated 


ALLISON  v.   CHANDLER.  215 

according  to  the  value  of  the  property  and  to  an  average  of 
profits  arrived  at  by  very  extended  observation  ;  and  so 
accurate  are  the  results  of  experience  in  this  respect  that 
rents  are  rendered  nearly  if  not  quite  as  certain  as  the  market 
value  of  commodities  at  a  particular  time  and  place. 

The  proper  rule  for  estimating  this  portion  of  the  damages 
in  the  present  case  was,  to  ascertain  what  would  have  been  a 
fair  price  to  pay  for  the  use  of  the  engine  and  machinery,  in 
view  of  all  the  hazards  and  chances  of  the  business  ;  and  this 
is  the  rule  which  I  understand  the  referee  to  have  adopted. 
There  is  no  error  in  the  other  allowances  made  by  the  referee. 
The  judgment  should  therefore  be  affirmed. 

All  the  judges  concurring. 

Judgment  affirmed. 


ALLISON  v.  CHANDLER. 

Michigan,  1863.     11  Mich.  542. 

Christianct,  J.1  Since,  from  the  nature  of  the  case,  the 
damages  cannot  be  estimated  with  certainty,  and  there  is  a 
risk  of  giving  by  one  course  of  trial  less,  and  by  the  other 
more  than  a  fair  compensation  —  to  say  nothing  of  justice  — 
does  not  sound  policy  require  that  the  risk  should  be  thrown 
upon  the  wrong  doer  instead  of  the  injured  party?  However 
this  question  may  be  answered,  we  cannot  resist  the  conclu- 
sion that  it  is  better  to  run  a  slight  risk  of  giving  somewhat 
more  than  actual  compensation,  than  to  adopt  a  rule  which, 
under  the  circumstances  of  the  case,  will,  in  all  reasonable 
probability,  preclude  the  injured  party  from  the  recovery  of 
a  large  proportion  of  the  damages  he  has  actually  sustained 
from  the  injury,  though  the  amount  thus  excluded  cannot  be 
estimated  with  accuracy  by  a  fixed  and  certain  rule.  Cer- 
tainty is  doubtless  very  desirable  in  estimating  damages  in 
all  cases :  and  where,  from  the  nature  and  circumstances  of 
the  case,  a  rule  can  be  discovered  bjr  which  adequate  com- 
1  Part  of  the  opinion  is  omitted. 


216  CASES  ON  DAMAGES. 

pensation  can  be  accurately  measured,  the  rule  should  be  ap- 
plied in  actions  of  tort,  as  well  as  in  those  upon  contract. 
Such  is  quite  generally  the  case  in  trespass  and  trover  for 
the  taking  or  conversion  of  personal  property  ;  if  the  prop- 
erty (as  it  generally  is)  be  such  as  can  be  readily  obtained  in 
the  market  and  has  a  market  value.  But  shall  the  injured 
party  in  an  action  of  tort,  which  may  happen  to  furnish  no 
element  of  certainty,  be  allowed  to  recover  no  damages  (or 
merely  nominal)  because  he  cannot  show  the  exact  amount 
with  certainty,  though  he  is  ready  to  show,  to  the  satisfaction 
of  the  jury,  that  he  has  suffered  large  damages  by  the  injury? 
Certainty,  it  is  true,  would  thus  be  attained ;  but  it  would 
be  the  certainty  of  injustice.  And,  though  a  rule  of  certainty 
may  be  found  which  will  measure  a  portion  and  only  a  portion 
of  the  damages,  and  exclude  a  very  material  portion,  which 
it  can  be  rendered  morally  certain  the  injured  party  has  sus- 
tained, though  its  exact  amount  cannot  be  measured  by  a 
fixed  rule  ;  here  to  apply  any  such  rule  to  the  whole  case,  is 
to  misapply  it :  and  so  far  as  it  excludes  all  damages  which 
cannot  be  measured  by  it,  it  perpetrates  positive  injustice 
under  the  pretence  of  administering  justice. 

The  law  does  not  require  impossibilities ;  and  cannot 
therefore  require  a  higher  degree  of  certainty  than  the  nature 
of  the  case  admits.  And  we  can  see  no  good  reason  for 
requiring  any  higher  degree  of  certainty  in  respect  to  the 
amount  of  damages,  than  in  respect  to  any  other  branch  of 
the  cause.  Juries  are  allowed  to  act  upon  probable  and 
inferential,  as  well  as  direct  and  positive  proof.  And  when, 
from  the  nature  of  the  case,  the  amount  of  the  damages  can- 
not be  estimated  with  certaint}*,  or  only  a  part  of  them  can 
be  so  estimated,  we  can  see  no  objection  to  placing  before  the 
jury  all  the  facts  and  circumstances  of  the  case,  having  any 
tendency  to  show  damages,  or  their  probable  amount ;  so  as 
to  enable  them  to  make  the  most  intelligible  and  probable 
estimate  which  the  nature  of  the  case  will  permit.  This 
should,  of  course,  be  done  with  such  instructions  and  advice 
from  the  court  as  the  circumstances  of  the  case  may  require, 


ALLISON   v.   CHANDLER.  217 

and  as  may  tend  to  prevent  the  allowance  of  such  as  may  be 
merely  possible,  or  too  remote  or  fanciful  in  their  character 
to  be  safely  considered  as  the  result  of  the  injury. 

In  the  adoption  of  this  course  it  will  seldom  happen  that 
the  court,  hearing  the  evidence,  will  not  thereby  possess  the 
means  of  forming  a  satisfactory  judgment  whether  the  dam- 
ages are  unreasonable,  or  exorbitant ;  and,  if  satisfied  they 
are  so,  the  court  have  always  the  power  to  set  aside  the 
verdict  and  grant  a  new  trial. 

The  justice  of  the  principles  we  have  endeavored  to  ex- 
plain will,  we  think,  be  sufficiently  manifest  in  their  applica- 
tion to  the  present  case.  The  evidence  strongly  teuded  to 
show  an  ouster  of  the  plaintiff  for  the  balance  of  the  term, 
by  the  defendant's  act.  This  term  was  the  property  of  the 
plaintiff ;  and,  as  proprietor,  he  was  entitled  to  all  the  bene- 
fits he  could  derive  from  it.  He  could  not  by  law  be  com- 
pelled to  sell  it  for  such  sum  as  it  might  be  worth  to  others ; 
and,  when  tortiously  taken  from  him  against  his  will,  he  can- 
not justly  be  limited  to  such  sum  —  or  the  difference  between 
the  rent  he  was  paying  and  the  fair  rental  value  of  th% 
premises  —  if  the  premises  were  of  much  greater  and  pecu- 
liar value  to  him,  on  account  of  the  business  he  had  estab- 
lished in  the  store,  and  the  resort  of  customers  to  that 
particular  place,  or  the  good  will  of  the  place,  in  his  trade  or 
business.  His  right  to  the  full  enjoyment  of  the  use  of  the 
premises,  in  any  manner  not  forbidden  by  the  lease,  was  as 
clear  as  that  to  sell  or  dispose  of  it,  and  was  as  much  his 
property  as  the  term  itself,  and  entitled  to  the  same  protec- 
tion from  the  laws.  He  had  used  the  premises  as  a  jewelry 
store,  and  place  of  business  for  the  repairing  of  watches, 
making  gold  pens,  &c.  This  business  must  be  broken  up  by 
the  ouster,  unless  the  plaintiff  could  obtain  another  fit  place 
for  it ;  and  if  the  only  place  he  could  obtain  was  less  fitted 
and  less  valuable  to  him  for  that  purpose,  then  such  business 
would  be  injured  to  the  extent  of  this  difference  ;  and  this 
would  be  the  natural,  direct  and  immediate  consequence  of 
the  injury.     To  confine  the  plaintiff  to  the  difference  between 


218  CASES  ON  DAMAGES. 

the  rent  paid  and  the  fair  rental  value  of  the  premises  to 
others,  for  the  balance  of  the  term,  would  be  but  a  mockery 
of  justice.  To  test  this,  suppose  the  plaintiff  is  actually  pay- 
ing that  full  rental  value,  and  has  established  a  business 
upon  the  premises,  the  clear  gains  or  profits  of  which  have 
been  an  average  of  one  thousand  dollars  per  year ;  and  he 
is  ousted  from  the  premises  and  this  business  entirely  broken 
up  for  the  balance  of  the  time ;  can  he  be  allowed  to  recover 
nothing  but  six  cents  damages  for  his  loss?  To  ask  such  a 
question  is  to  answer  it.  The  rule  which  would  confine  the 
plaintiff  to  the  difference  between  such  rental  value  and 
the  stipulated  rent  can  rest  only  upon  the  assumption  that 
the  plaintiff  might  (as  in  case  of  personal  property)  go  at 
once  into  the  market  and  obtain  another  building  equally  well 
fitted  for  his  business,  and  that  for  the  same  rent ;  and  to 
justify  such  a  rule  of  damages  this  assumption  must  be  taken 
as  a  conclusive  presumption  of  law.  However  such  a  pre- 
sumption might  be  likely  to  accord  with  the  fact  in  the  city 
of  New  York,  in  most  western  cities  and  towns  it  would  be 
so  obviously  contrary  to  the  common  experience  of  the  facts, 
as  to  make  the  injustice  of  the  rule  gross  and  palpable. 
But  we  need  not  further  discuss  this  point,  as  a  denial  of 
any  such  presumption  was  clearly  involved  in  our  former 
decision. 

The  plaintiff  in  this  case  did  hire  another  store,  "  the  best 
he  could  obtain,  but  not  nearly  so  good  for  his  business  "  — 
"  his  customers  did  not  come  to  the  new  store,  and  there 
was  not  so  much  of  a  thoroughfare  by  it,  not  one  quarter  of 
the  travel,  and  he  relied  much  upon  chance  custom,  especially 
in  the  watch-repairing  and  other  mechanical  business."  This 
injury  to  the  plaintiff's  business  was  as  clearly  a  part  of  his 
damages  as  the  loss  of  the  term  itself.  This  point  also  was 
decided  in  the  former  case,  and  we  there  further  held  that 
the  declaration  was  sufficient  to  admit  the  proof  of  this 
species  of  loss. 

Now  if  the  plaintiff  is  to  be  allowed  to  recover  for  this  in- 
jury to  his  business,  it  would  seem  to  follow,  as  a  necessary 


DENNIS   v.   MAXFIELD.  219 

consequence,  that  the  value  of  that  business  before  the  injury 
as  well  as  after,  not  only  might,  but  should  be  shown,  as  an 
indispensable  means  of  showing  the  amount  of  loss  from  the 
injury.  If  the  business  were  a  losing  one  to  the  plaintiff  be- 
fore, his  loss  from  its  being  broken  up  or  diminished  (if  an}-- 
thing)  would  certainly  be  less  than  if  it  were  a  profitable  one. 
It  is  not  the  amount  0/  business  done,  but  the  gain  or  profit 
arising  from  it,  which  constitutes  its  value. 


DENNIS   v.   MAXFIELD. 

Massachusetts,  1865.     10  All.  138. 

Contract  brought  by  the  master  against  the  owners  of  the 
whaling  ship  Harrison,  to  recover  damages  for  a  breach  of  a 
contract  by  which  they  had  employed  him  for  a  whaling 
vo}"age.  The  contract  was  contained  in  a  shipping  paper, 
for  "  a  whaling  voyage  of  five  }*ears'  duration  from  the  sail- 
ing of  the  said  ship  from  the  port  of  New  Bedford,  unless 
said  ship  shall  sooner  return  to  said  port  and  the  voyage  be 
terminated ; "  and  in  a  written  agreement  by  which  it  was 
provided  as  follows  :  "  The  said  Dennis  agreeing  on  his  part 
to  perform  a  whaling  voyage  as  master  of  the  said  ship 
Harrison,  to  the  best  of  his  ability  and  knowledge  ;  and  the 
said  Maxfield  as  agent  on  his  part  agrees  to  pay  for  the 
services  of  the  said  Dennis  in  the  manner  following :  One 
fourteenth  lay  on  net  proceeds  of  whole  cargo,  and  one  dollar 
per  barrel  on  all  sperm  oil  taken.  In  addition  to  the  above, 
to  have  five  hundred  dollars  if  the  cargo  amounts  to  $70,000  ; 
and  $1000  to  be  added  when  it  shall  amount  to  $90,000  ;  and 
$2000  more  to  be  added  to  the  aforesaid  amount  when  the 
cargo  amounts  to  $100,000.  Also  to  have  one  hundred 
dollars  for  each  and  every  thousand  dollars  that  the  cargo 
may  exceed  one  hundred  thousand  dollars." 

The  declaration  averred  that  the  plaintiff  sailed  from  New 
Bedford,  in  pursuance  of  the  above  contract,  on  the  1 7th  of 


220  CASES   ON   DAMAGES. 

May,  1858,  and  well  and  truly  performed  his  dut}-  until  the 
20th  of  November,  1860,  when  the  defendants  wrongfully 
deposed  and  removed  him  at  the  Sandwich  Islands.1 

Bigelow,  C.J.  Of  the  several  rulings  made  at  the  trial 
of  this  case,  three  only  seem  to  be  open  for  revision  on  the 
exceptions. 

1.  The  first  relates  to  the  right  of  the  plaintiff  to  recover  in 
this  action  the  amount  of  his  share  of  the  earnings  which  had 
accrued  under  his  contract  with  the  defendants  prior  to  his 
removal  by  them  from  the  command  of  the  vessel.  The 
action  is  brought  for  a  breach  of  an  entire  contract  for 
services.  The  plaintiff  has  a  right  to  recover  as  damages 
the  amount  which  is  lawfully  due  to  him  under  the  stipula- 
tions by  which  his  compensation  for  these  services  was  to  be 
regulated  and  governed.  This  includes  the  wages  which  he 
had  earned  previous  to  his  removal,  as  well  as  those  which 
he  was  prevented  from  earning  by  his  wrongful  discharge. 
The  breach  of  the  contract  by  the  defendants  has  created 
only  one  cause  of  action  in  favor  of  the  plaintiff.  His  com- 
pensation for  this  breach  necessarily  embraces  all  that  he  is 
entitled  to  recover  under  the  contract.  Indeed  his  right  to 
recover  anything,  as  well  that  which  was  earned  before  as 
that  which  would  have  been  earned  if  he  had  not  been  dis- 
charged, depends  on  the  question  whether  he  has  performed 
his  part  of  the  contract.  A  party  cannot  sever  a  claim  for 
damages  arising  under  one  contract  so  as  to  make  two  dis- 
tinct and  substantive  causes  of  action.  We  are  therefore 
all  of  opinion  that  the  sum  due  to  the  plaintiff  prior  to 
his  discharge,  when  it  shall  have  been  ascertained  by  an 
assessor,  ought  to  be  added   to  the  amount  of  the  verdict. 

2.  We  think  it  equally  clear  that  the  plaintiff  is  entitled  to 
recover  in  this  action  his  share  or  proportion  of  the  future 
profits  or  earnings  of  the  vessel  after  his  discharge  b}'  the 
defendants.  These  constitute  a  valid  claim  for  damages, 
because  the  parties  have  expressly  stipulated  that  profits 
should   be  the   basis  on  which   a   portion  of  the   plaintiff's 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted- 


DENNIS  v.  MAXEIELD.  221 

compensation  for  services  should  be  reckoned.  These  earn- 
ings or  profits  were  therefore  within  the  direct  contemplation 
of  the  parties,  when  the  contract  was  entered  into.  They 
are  undoubtedly  in  their  nature  contingent  and  speculative 
and  difficult  of  estimation ;  but,  being  made  by  express 
agreement  of  the  parties  of  the  essence  of  the  contract,  we 
do  not  see  how  they  can  be  excluded  in  ascertaining  the 
compensation  to  which  the  plaintiff  is  entitled.  Would  it 
be  a  good  bar  to  a  claim  for  damages  for  breach  of  articles 
of  copartnership,  that  the  profits  of  the  contemplated  busi- 
ness were  uncertain,  contingent,  and  difficult  of  proof,  and 
could  it  be  held  for  this  reason  that  no  recover}'  could  be  had 
in  case  of  a  breach  of  such  a  contract?  Or  in  an  action  on  a 
policy  of  insurance  on  profits,  would  it  be  a  valid  defence  in 
the  event  of  loss  to  say  that  no  damages  could  be  claimed  or 
proved  because  the  subject  of  insurance  was  merely  specula- 
tive, and  the  data  on  which  the  profits  must  be  calculated 
were  necessarily  inadequate  and  insufficient  to  constitute  a 
safe  basis  on  which  to  rest  a  claim  for  indemnity?  The 
answer  is,  that  in  such  cases  the  parties,  having  by  their 
contract  adopted  a  contingent,  uncertain,  and  speculative 
measure  of  damages,  must  abide  by  it,  and  courts  and  juries 
must  approximate  as  nearly  as  possible  to  the  truth  in 
endeavoring  to  ascertain  the  amount  which  a  part}'  may  be 
entitled  to  recover  on  such  a  contract  in  the  event  of  a 
breach.  If  this  is  not  the  rule  of  law,  we  do  not  see  that 
there  is  any  alternative  short  of  declaring  that  where  parties 
negotiate  for  compensation  or  indemnity  in  the  form  of  an 
agreement  for  profits  or  a  share  of  them,  no  recovery  can  be 
had  on  such  a  contract  in  a  court  of  law,  —  a  proposition 
which  is  manifestly  absurd. 

There  are  doubtless  many  cases  where  no  claim  for  a  loss 
of  profits  can  properly  constitute  an  element  of  damage  in  an 
action  for  breach  of  a  contract.  These,  however,  are  cases 
in  which  there  was  no  stipulation  for  compensation  by  a  share 
of  the  profits,  and  where  they  were  not  within  the  contempla- 
tion of  the  parties,  and  did  not  form  a  natural,  necessary,  or 


222  CASES   ON  DAMAGES. 

proximate  result  of  a  breach  of  the  contract  declared  on 
Fox  v.  Harding,  7  Cush.  516.  But  these  cases  are  no 
authority  for  the  broad  proposition  that  in  no  case  whatever 
can  profits  be  included  in  estimating  damages  for  a  breach  of 
a  contract.  In  Johnson  v.  Arnold,  2  Cush.  46,  cited  by  the 
defendants'  counsel,  the  court  decided  only  that,  in  an  action 
for  breach  of  contract  for  services,  by  which  it  was  agreed 
that  a  party  should  be  compensated  b}*  a  share  of  the  profits, 
the  damages  were  not  to  be  limited  exclusively  to  the  loss  of 
profits,  but  might  include  other  elements,  if  satisfactorily 
proved.  In  Brown  v.  Smith,  12  Cush.  366,  the  action  was 
against  the  master  of  a  whaling-vessel  for  misconduct  and 
mismanagement,  by  which  the  voyage  was  broken  up.  It 
was  held  that  no  conjectural  or  possible  profits  of  the  voyage 
could  be  taken  into  consideration  in  estimating  the  damages. 
This  decision  stands  on  the  ground  that  there  were  no  stipula- 
tions in  the  contract  concerning  profits,  nor  were  they,  so 
far  as  appeared,  in  contemplation  of  the  parties  when  the 
contract  was  made,  nor  a  necessary  or  proximate  conse- 
quence of  its  breach.  Besides,  it  was  only  a  claim  for  con- 
jectural or  possible  profits  which  was  rejected  by  the  court  in 
that  case,  and  not  profits  which  were  capable  of  being  proved 
by  competent  evidence,  as  in  the  case  at  bar. 


CHAPMAN  v.  KIRBY. 

Illinois,  1868.     49  111.  211. 

"Walker,  J.1  It  appears,  from  the  evidence  in  this  case, 
that  Pomeroy  Brothers,  on  the  1st  day  of  May,  1864,  were 
the  owners  of  a  planing-mill  and  premises  in  the  city  of 
Chicago,  and  by  a  deed  duly  executed,  leased  to  appellee  a 
portion  of  the  premises  and  a  quantity  of  steam  power,  which 
was  specified,  from  the  1st  day  of  May,  1864,  until  the  1st  day 
of  January,  1869,  at  a  specified  rent.  .  .  . 
1  Part  of  the  opinion  is  omitted. 


CHAPMAN  v.   KIP.BY.  223 

It  appears  that  Pomeroy  Brothers  assigned  their  lease  to 
A.  C.  Hesing,  and  he  to  the  appellant,  Chapman.  On  the 
1st  of  June,  1867,  Chapman  severed  the  connecting  shaft, 
just  outside  of  the  portion  of  the  premises  held  by  appellee, 
which  connected  with  the  engine  and  supplied  appellee  with 
power,  and  thus  stopped  his  machinery.  And  for  this  act,  on 
the  part  of  Chapman,  appellee  brought  an  action  on  the  case, 
to  recover  for  the  damages  he  claims  to  have  sustained.  .  .  . 

This  was  an  action  on  the  case,  and  not  on  contract.  In  all 
actions  of  tort,  the  measure  of  damages  is  not  less  than  the 
amount  of  damages  sustained,  and  in  case,  all  of  the  conse- 
quential damages  sustained,  connected  with  or  flowing  from 
the  act  complained  of  by  the  plaintiff.  But  the  damages  must 
be  the  necessary  and  natural  consequence  of  the  act.  They 
must  be  real,  and  not  merely  speculative  or  probable.  And  if, 
by  withdrawing  the  steam  power  on  the  1st  of  June,  and  a 
failure  to  restore  it  until  the  1st  of  November  following,  his 
leasehold  estate  became  reduced  in  value,  and  his  stock  and 
machinery  were  depreciated,  and  his  business  was  broken  up, 
and  his  customers  were  diverted  to  other  places  of  business, 
these  were  all  proper  elements  for  the  consideration  of  the 
jur}-  in  ascertaining  the  amount  of  damages  sustained  by 
appellee.  And  if  all  these  things  did  occur,  and  were  the 
direct  result  of  appellants'  wrongful  act,  they  should  make 
good  the  loss.  It  cannot  be  held  that,  after  the  power  was 
withheld,  appellee  should  remain  inactive,  hold  his  machinery, 
unfinished  stock,  and  fixtures,  until  the  end  of  his  term,  undis> 
posed  of,  and  his  capital  tied  up  and  yielding  him  nothing, 
No  rule  of  law  or  principle  of  justice  could  require  such  a 
course.  When  the  power  was  withheld,  appellee  had  a  right 
to  suppose  that  it  would  be  permanent,  and  to  dispose  of  his 
lease,  stock,  machinery,  and  fixtures  on  the  best  terms  he 
could  obtain.  And  there  can  be  no  doubt  that  appellants 
should  be  held  liable  for  any  loss  that  might  be  sustained  by 
such  a  sale. 

Appellants,  having  committed  the  wrong,  must  be  held  liable 
for  all  losses  that  flow  from  it.     And  if  the  loss  on  these  vari- 


224  CASES  ON  DAMAGES. 

ous  articles  was  the  necessary  and  proximate  result  of  the  act, 
—  and  of  that  the  jury  must  judge  from  the  evidence,  —  they 
must  be  held  liable.  It  cannot  be  said  that,  when  the  lease 
has  been  destroyed  or  rendered  valueless,  the  buildings, 
machinery,  and  stock  in  trade  have  been  depreciated,  and  a 
lucrative  business  destroyed  by  the  wrongful  act  of  another, 
the  sufferer  shall  only  receive  nominal  damages,  or  the  mere 
damages  equal  only  to  the  value  of  the  lease  over  and  above 
the  rent.  The  person  thus  wronged  is  entitled  to  recover  for 
all  of  the  injury  he  has  sustained. 

As  to  the  estimate  of  losses  sustained  by  the  breaking  up 
of  bis  established  business,  there  would  seem  to  be  no  well- 
founded  objection.  We  all  know  that  in  many,  if  not  all, 
professions  and  callings,  years  of  effort,  skill,  and  toil  are 
necessary  to  establish  a  profitable  business,  and  that  when 
established  it  is  worth  more  than  capital.  Can  it  then  be 
said,  that  a  party  deprived  of  it  has  no  remedy,  and  can 
recover  nothing  for  its  loss,  when  produced  by  another? 
It  has  long  been  well-recognized  law,  that  when  deprived  of 
such  business  by  slander,  compensation  for  its  loss  ma}-  be 
recovered  in  this  form  of  action.  And  why  not  for  its  loss 
b}'  this  more  direct  means?  And  of  what  does  this  loss 
consist,  but  the  profits  that  would  have  been  made  had  the 
act  not  been  performed  by  appellants?  And  to  measure  such 
damages,  the  jury  must  have  some  basis  for  an  estimate,  and 
what  more  reasonable  than  to  take  the  profits  for  a  reasonable 
period  next  preceding  the  time  when  the  injury  was  inflicted, 
leaving  the  other  party  to  show,  that  by  depression  in  trade, 
or  other  causes,  they  would  have  been  less?  Nor  can  we 
expect  that  in  actions  of  this  character,  the  precise  extent 
of  the  damages  can  be  shown  by  demonstration.  But  b}T 
this  means  the}'  can  be  ascertained  with  a  reasonable  de- 
gree of  certainty.  Nor  do  the  views  here  expressed  conflict 
with  the  case  of  Green  v.  Williams,  45  111.  206,  as  in  that  case 
the  lessee  had  not  entered  upon  the  term  ;  had  not  built  up 
or  established  a  business,  and  had  not  suffered  such  a  loss. 
There  was  not  in  that  case  any  basis  upon  which  to  determine 


WOLCOTT  v.   MOUNT.  225 

whether  there  ever  would  be  amT  profits,  or  upon  which  to 
estimate  them.  The  case  of  Cilley  v.  Hawkins,  48  111.  308, 
proceeds  upon  the  same  principle. 

The  evidence  as  well  as  the  instruction  in  reference  to  the 
profits  and  losses,  were  proper.  That  instruction  being  proper, 
the  reverse  was  improper,  and  was  correctly  refused.  Nor  is 
there  any  force  in  the  objection  that  appellee  was  not  confined 
to  the  value  of  his  lease  from  the  time  the  power  was  withheld 
until  it  was  connected  with  the  machinery,  some  five  months 
afterwards.  Appellee  had  sold  out,  his  business  was  de- 
stroyed, and  he  was  not  bound  to  re-establish  his  business, 
when  he  had  no  assurance  that  it  would  be  continued  during 
the  remainder  of  his  term.  Appellants  had  cut  off  the  power 
under  such  circumstances  as  warranted  him  in  believing  that 
it  was  intended  to  deprive  him  of  the  use  of  the  power,  and 
he  was  not  bound  to  suppose  appellants  would  be  more  dis- 
posed to  regard  his  rights  in  the  future  than  they  had  been  in 
the  past.  If  appellants  had  repented,  and  were  then  disposed 
to  retract,  they  must  not  complain  if  appellee  was  unwilling 
to  trust  their  future  conduct,  as  by  their  own  disregard  of  his 
rights  in  the  past,  the}-  could  not  expect  him  to  confide  in 
them  in  the  future.  The  instructions  fairly  presented  the  case 
to  the  jur}-,  and  the  evidence  sustains  the  verdict. 

The  judgment  of  the  court  below  must  be  affirmed. 

Judgment  affirmed. 


WOLCOTT  v.  MOUNT. 

New  Jersey,  1873.     36  N.  J.  L.  262. 

Wolcott  kept  a  store  of  general  merchandise,  and  among 
other  articles  advertised  and  kept  agricultural  seeds  for  sale. 
Mount  went  to  the  store  and  asked  for  early  strap-leaf  red- 
top  turnip  seed,  and  Wolcott  showed  him  and  sold  to  him  two 
pounds  of  seed  as  such.     Mount  sowed  the  same  on  his  land, 

which  he  had  prepared  with  care  and  great  expense  for  the 

15 


226  CASES  ON  DAMAGES. 

purpose.  Mount  had  been  in  the  habit,  year  after  year,  to 
sow  early  strap-leaf  red-top  turnip  seed,  to  produce  turnips 
for  the  early  New  York  market,  such  kind  and  description  of 
turnips  yielding  a  large  profit,  and  he,  at  time  of  purchase, 
stated  that  he  wished  this  description  and  kind  of  seed  for 
that  purpose. 

The  seed  sold  to  Mount  by  Wolcott  was  sown  upon  the 
ground  prepared  for  same  by  Mount,  and  the  turnips  produced 
therefrom  were  not  early  strap-leaf  red-top  turnips,  but  tur- 
nips of  a  different  kind  and  description,  to  wit,  Russia,  late, 
and  not  salable  in  market,  and  only  fit  for  cattle,  and  he 
lost  his  entire  crop.  The  plaintiff  proved  that  the  seed  sold 
him  by  Wolcott  was  not  early  strap-leaf  red-top  turnip  seed, 
but  seed  of  a  different  kind  and  description,  to  wit,  Russia 
turnip  seed,  and  that  it  produced  no  profit  to  him,  and  that 
earl}'  strap-leaf  red-top  turnip  seed  on  same  ground  in  other 
3rears  had  produced  large  profits  to  Mount,  and  on  adjoining 
ground,  prepared  in  same  way,  the  same  year,  had  produced 
great  profits  to  the  owner,  and  that  Mount  was  damaged 
thereby. 

It  is  agreed  that  this  kind  of  turnip  seed  cannot  be  known 
and  distinguished,  by  the  examination  through  sight  or 
touch,  from  Russia  or  other  kinds,  but  only  by  the  kind  of 
turnips  it  produces  after  sowing  can  it  be  known.1 

Depue,  J.  The  contention  of  the  defendants'  counsel  was, 
that  the  damages  recoverable  should  have  been  limited  to  the 
price  paid  for  the  seed,  and  that  all  damages  beyond  a  resti- 
tution of  the  consideration  were  too  speculative  and  remote 
to  come  within  the  rules  for  measuring  damages.  As  the 
market  price  of  the  seed  which  the  plaintiff  got,  and  had  the 
benefit  of  in  a  crop,  though  of  an  inferior  quality,  was 
probably  the  same  as  the  market  price  of  the  seed  ordered, 
the  defendants'  rule  of  damages  would  leave  the  plaintiff 
remediless.  .   .   . 

It  must  not  be  supposed  that  under  the  principle  of  Hadley 

1  The  statement  of  facts  has  been  slightly  condensed,  and  part  of  the 
opinion  omitted. 


WOLCOTT  v.  MOUNT.  227 

v.  Baxendale  mere  speculative  profits,  such  as  might  be  con- 
jectured to  have  been  the  probable  results  of  an  adventure 
■which  was  defeated  by  the  breach  of  the  contract  sued  on, 
the  gains  from  which  are  entirely  conjectural,  with  respect  to 
which  no  means  exist  of  ascertaining,  even  approximately, 
the  probable  results,  can,  under  any  circumstances,  be  brought 
within  the  range  of  damages  recoverable.  The  .  cardinal 
principle  in  relation  to  the  damages  to  be  compensated  for 
on  the  breach  of  a  contract,  that  the  plaintiff  must  establish 
the  quantum  of  his  loss,  by  evidence  from  which  the  jury  will 
be  able  to  estimate  the  extent  of  his  injury,  will  exclude  all 
such  elements  of  injury  as  are  incapable  of  being  ascertained 
by  the  usual  rules  of  evidence  to  a  reasonable  degree  of 
certaint}'. 

For  instance,  profits  expected  to  be  made  from  a  whaling 
voyage,  the  gains  from  which  depend  in  a  great  measure  upon 
chance,  are  too  purely  conjectural  to  be  capable  of  entering 
into  compensation  for  the  non-performance  of  a  contract,  by 
reason  of  which  the  adventure  was  defeated.  For  a  similar 
reason,  the  loss  of  the  value  of  a  crop  for  which  the  seed  had 
not  been  sown,  the  yield  from  which,  if  planted,  would  de- 
pend upon  the  contingencies  of  weather  and  season,  would  be 
excluded  as  incapable  of  estimation,  with  that  degree  of  cer- 
tainty which  the  law  exacts  in  the  proof  of  damages.  But  if 
the  vessel  is  under  charter,  or  engaged  in  a  trade,  the  earn- 
ings of  which  can  be  ascertained  by  reference  to  the  usual 
schedule  of  freights  in  the  market,  or  if  a  crop  has  been  sowed  I 
on  the  ground  prepared  for  cultivation,  and  the  plaintiff's  com- 
plaint is,  that  because  of  the  inferior  quality  of  the  seed  a  crop 
of  less  value  is  produced,  by  these  circumstances  the  means 
would  be  furnished  to  enable  the  jury  to  make  a  proper  esti- 
mation of  the  injury  resulting  from  the  loss  of  profits  of  this 
character. 

In  this  case  the  defendants  had  express  notice  of  the  in- 
tended use  of  the  seed.  Indeed,  the  fact  of  the  sale  of  seeds 
by  a  dealer  keeping  them  for  sale  for  gardening  purposes,  to 
a  purchaser  engaged  in  that  business,  would  of  itself  imply 


228  CASES   ON  DAMAGES. 

knowledge  of  the  use  which  was  intended,  sufficient  to  amount 
to  notice.  The  ground  was  prepared  and  sowed,  and  a  crop 
produced.  The  uncertainty  of  the  quantit}'  of  the  crop, 
dependent  upon  the  condition  of  weather  and  season,  was 
removed  by  the  3'ield  of  the  ground  under  the  precise  circum- 
stances to  which  the  seed  ordered  would  have  been  exposed. 
The  difference  between  the  market  value  of  the  crop  raised, 
and  the  same  crop  from  the  seed  ordered,  would  be  the  cor- 
rect criterion  of  the  extent  of  the  loss.  Compensation  on 
that  basis  maj-  be  recovered  in  damages  for  the  injury  sus- 
tained as  the  natural  consequence  of  the  breach  of  the  con- 
tract. Randell  v.  Raper,  E.  B.  &  E.  84  ;  Lovegrove  v.  Fisher, 
2  F.  &  F.  128. 

From  the  state  of  the  case,  it  must  be  presumed  that  the 
court  below  adopted  this  rule  as  the  measure  of  damages,  and 
the  judgment  should  be  affirmed. 


MASTERTON  v.  MOUNT  VERNON. 
New  York,  1874.     58  N.  Y.  391. 

This  action  was  brought  to  recover  damages  for  injuries 
received  by  plaintiff  being  thrown  from  his  wagon  in  one  of 
the  streets  of  the  village  of  Mount  Vernon.1 

Grover,  J.  I  think  the  judge  erred  in  overruling  the  de- 
fendant's objection  to  the  following  question  :  About  what 
had  been  your  profits,  year  by  year,  in  that  business?  The 
plaintiff  had  testified  that  he  was  engaged  in  the  tea  import- 
ing and  jobbing  business,  buying  and  selling  teas,  and  had 
been  for  a  great  number  of  years.  That  he  had  a  partner 
who  attended  to  the  sales,  while  he  made  the  purchases. 
That  in  purchasing  teas  a  high  degree  of  skill  was  necessar}-. 
which  the  plaintiff  possessed.  That  the  business  was  exten- 
sive. That  in  consequence  of  the  injury  the  plaintiff  could 
not  purchase  teas,  and  there  was  a  great  falling  off  in  the 

1  Part  of  the  case  is  omitted. 


MASTERTON  v.  MOUNT  VERNON.  229 

business  of  the  firm.  In  Lincoln  v.  Saratoga  and  S.  Eailroad 
Co.,  23  Wend.  425,  it  was  held,  in  an  analogous  case,  that 
the  plaintiff  might  prove  that  he  was  engaged  in  the  dry- 
goods  business,  and  its  extent,  but  there  was  no  attempt  to 
prove  the  past  profits  of  the  business,  with  a  view  to  show 
what  the  future  would  be.  Where,  in  such  a  case,  the  plain- 
tiff has  received  a  fixed  compensation  for  his  services,  or  his 
earnings  can  be  shown  with  reasonable  certainty,  the  proof  is 
competent.  Mclntyre  v.  N.  Y.  C.  R.  R.  Co.,  37  N.  Y.  287 ; 
Grant  v.  The  City  of  Brooklyn,  41  Barb.  381.  In  Nebraska 
City  v.  Campbell,  2  Black,  590,  it  was  held  that  proof  that 
the  plaintiff  was  a  physician,  and  the  extent  of  his  practice, 
was  competent.  Wade  v.  Leroy,  20  How.  (U.  S.)  24,  held 
the  same.  In  none  of  these  cases  is  any  intimation  given  that 
proof  may  be  given  as  to  the  uncertain  future  profits  of  com- 
mercial business,  or  that  the  amount  of  past  profits  derived 
therefrom  inay  be  shown,  to  enable  the  jury  to  conjecture 
what  the  future  might  probabby  be.  These  profits  depend  upon 
too  many  contingencies,  and  are  altogether  too  uncertain  to 
furnish  any  safe  guide  in  fixing  the  amount  of  damages.  In 
Walkers  The  Erie  R,  R.  Co.,  03  Barb.  2G0,  it  was  held  that 
proof  of  the  amount  of  income  derived  by  the  plaintiff  for  the 
year  preceding  the  injury,  from  the  practice  of  his  profession 
as  a  lawyer,  was  competent  This  goes  beyond  the  rule 
adopted  in  any  of  the  other  cases,  and  it  certainly  ought  not 
to  be  further  extended.  Whether  proof  of  the  income  derived 
by  a  lawyer  from  the  past  practice  of  his  profession  is  compe- 
tent for  the  purpose  of  authorizing  the  jury  to  draw  an  infer- 
ence as  to  the  extent  of  the  loss  sustained  by  inability  to 
personally  attend  to  business,  may,  I  think,  well  be  doubted. 
There  is  no  such  uniformity  in  the  amount  in  different  years, 
as  a  general  rule,  as  to  make  such  inference  reliable.  But 
the  profits  of  importing  and  selling  teas  are  still  more  uncer- 
tain. In  some  years  they  may  be  large,  and  in  others  attended 
with  loss.  The  plaintiff  had  the  right  to  prove  the  business 
in  which  he  was  engaged,  its  extent,  and  the  particular  part 
transacted  by  him,  and,  if  he  could,  the  compensation  usually 


230  CASES  ON  DAMAGES. 

paid  to  persons  doing  such  business  for  others.  These  are 
circumstances  the  jury  have  a  right  to  consider  in  fixing  the 
value  of  his  time.  But  they  ought  not  to  be  permitted  to 
speculate  as  to  the  uncertain  profits  of  commercial  ventures, 
in  which  the  plaintiff,  if  uninjured,  would  have  been  engaged. 
The  judgment  appealed  from  should  be  reversed,  and  a 
new  trial  ordered,  costs  to  abide  the  event. 


MURDOCK  v.   NEW  YORK   AND   BOSTON  DE- 
SPATCH  EXPRESS   COMPANY. 

Massachusetts,  1897.     167  Mass.  549. 

Holmes,  J.1  This  is  an  action  for  running  the  plaintiff  down 
by  a  runaway  horse.   .   .   . 

The  plaintiff  was  allowed  to  testify  to  his  average  monthly 
earnings,  and  an  exception  was  taken.  We  are  of  opinion 
that  the  evidence  was  admissible.  There  is  no  question  of 
pleading  about  it.  A  part  of  the  immediate  damage  in  all 
such  cases  is  that  the  plaintiff  is  prevented  from  working.  To 
ascertain  the  economic  value  of  what  he  is  deprived  of,  there 
seems  to  be  no  better  help  than  to  take  his  average  earnings 
in  the  past,  subject  perhaps  to  the  cautions  to  be  found  in  the 
English  cases.     Phillips  v.  London  &  Southwestern  Railway, 

5  C.  P.  D.  280,  286,  290,  S.  C.  5  Q.  B.  D.  78,  81,  87,  4 
Q.  B.  D.  406,  408;  Armsworth  v.  Southeastern  Railway,  11 
Jur.  758,  760  ad  fin;  Ehrgott  v.  New  York,  96  N.  Y.  264, 
275,  276;  New  Jersey  Express  Co.  v.  Nichols,  4  Vroom, 
434,  437;  Pennsylvania  Railroad  v.  Dale,  76  Penn.  St.  47; 
Welch  v.  Ware,  32  Mich.  77,  81  ;   Parshall  v.   Minneapolis 

6  St.  Louis  Railway,  35  Fed.  Rep.  649,  651 ;  McNaraarav. 
Clintonville,  62  Wis.  207,  210  ;  Collins  v.  Dodge,  37  Minn. 
503  ;  Myhan  v.  Louisiana  Electric  Light  &  Power  Co.,  41  La. 
An.  964,  969.     See  Ballou  v.  Farnum,  11  Allen,  73,  79. 

Exceptions  overruled. 
1  Part  of  the  opinion  is  omitted. 


COMSTOCK  v.  CONNECTICUT  R'Y  AND  LIGHTING  CO.     231 


COMSTOCK  v.    CONNECTICUT  RAILWAY  AND 
LIGHTING  COMPANY. 

Connecticut,  1904.     77  Conn.  65. 

Baldwin,  J.1  The  plaintiffs,  when  produced  as  witnesses 
in  their  own  behalf,  were  severally  asked  whether  the  keeping 
of  boarders  had  been  profitable  during  the  year  previous  to 
the  injury  ;  and  it  was  proposed  to  follow  this  up  by  asking 
each  to  estimate  the  amount  of  such  profits,  and  also  the 
profits  for  the  next  succeeding  year.  No  claim  was  made 
that  accounts  had  been  kept  showing  the  items  of  cost  and 
receipts,  or  that  such  items  could  be  proved.  The  question 
was  excluded,  on  the  ground  that  such  evidence  was  remote, 
speculative,  and  immaterial. 

The  complaint  stated  that  she  was  the  keeper  of  a  fashion- 
able boarding-house,  and  had  long  furnished  her  husband 
with  support.  This,  after  a  default,  fairly  implied  that  his 
support  came  from  her  keeping  the  boarding-house,  and  that 
her  services  in  that  business  were  valuable  to  him.  How  val- 
uable they  were,  and  how  great  had  been  his  loss,  could  best 
be  ascertained  by  showing  what  the  profits  from  it  were, 
before  the  injury,  and  what  they  had  been  since. 

A  loss  of  profits  cannot  be  shown  in  proof  of  damage  from 
a  breach  of  contract,  unless  damage  from  that  source  should 
reasonably  have  been  contemplated  by  the  defendant,  at  the 
date  of  the  contract,  as  a  natural  result  of  the  breach.  Lewis 
v.  Hartford  Dredging  Co.,  68  Conn.  221,  234.  He  who  does 
a  wrongful  injury  to  the  person  of  another  is  held  to  a  stricter 
rule  of  liability.  If  the  injury  directly  impairs  the  earning 
capacity  of  the  latter,  he  can  recover  in  an  action  of  tort, 
under  proper  pleadings,  the  amount  of  his  loss  from  such 
impairment,  although  by  reason  of  his  peculiar  knowledge  or 
ability  it  may  be  much  greater  than  that  which  would  have 
been  suffered  by  an  ordinary  man,  and  although  his  posses- 
1  Part  of  the  opinion  is  omitted. 


232  CASES   ON  DAMAGES. 

sion  of  this  peculiar  knowledge  or  ability  may  have  been  | 
unknown  to  the  defendant  when  the  wroug  was  done. 

There  are  two  modes  of  proving  what  is  a  man's  earning 
capacity.  His  general  qualities  and  his  qualifications  for  any 
particular  business  in  which  he  may  be  engaged  may  be  de- 
scribed by  those  who  know  him,  and  under  some  circum- 
stances they  can  give  their  opinion  as  to  what  sum  represents 
the  pecuniary  value  of  his  earning  capacity  for  a  certain 
period  of  time.  Harmon  v.  Old  Colony  R.  Co.,  168  Mass. 
377,  47  Northeastern  Rep.  100;  Matteson  v.  New  York  Cen- 
tral R.  Co.,  35  N.  Y.  487,  493.  The  other  mode  is  to  show 
what  his  earnings  in  fact  were  during  a  certain  period.  If 
he  was  employed  by  another  on  a  salary,  or  worked  at  a 
trade,  to  those  engaged  in  which  a  fixed  rate  of  wages  was 
customarily  paid,  they  are  easily  proved.  Finken  u.  Elm  City 
Brass  Co.,  73  Conn.  423,  425.  If  he  was  himself  conduct- 
ing a  business,  the  net  receipts  from  which  were  naturally  due 
to  his  ability  to  conduct  it  successfully  and  can  be  ascertained 
with  reasonable  certainty,  the  amount  thus  realized,  while  it 
may  be  more  difficult  to  cipher  it  out  with  accuracj-,  is  also  a 
proper  subject  of  evidence.  The  business  of  the  keeper  of 
an  established  and  "fashionable"  boarding-house  is  one  of 
this  kind.  To  prosecute  it  successfully  requires  special  qual- 
ities. Whoever  engages  in  it  should  have  the  gift  of  manage- 
ment ;  be  a  good  buyer  ;  know  how  to  provide  liberally  and  not 
lavishly  ;  possess  tact,  prudence,  and  discretion.  Such  assist- 
ance as  it  is  necessary  to  have  generally  comes  from  those 
employed  at  fixed  wages.  There  is  a  fixed  rate  of  charge 
against  each  of  the  boarders.  Rent  is  a  fixed  item,  unless 
the  house  is  owned  by  the  one  who  keeps  it,  in  which  case  the 
annual  value  of  its  use  can  easily  be  shown.  The  net  returns, 
or  profits,  of  such  a  business  are  quite  as  readily  ascertained 
as  those  arising  from  the  practice  of  a  profession ;  and  are 
equally  a  proper  subject  of  proof,  in  a  case  like  this.  They 
are  to  be  considered  simply  as  bearing  on  the  earning  capac- 
ity of  the  person  conducting  it,  and  only  such  can  be  shown 


WAKEMAN  v.   WHEELER  AND  WILSON  M'F'G  CO.    233 

as  are  susceptible  of  estimation  with  reasonable  certainty. 
Wallace  v.  Pennsylvania  R.  Co.,  195  Pa.  St.  127,  45  Atl.  Rep. 
685,  52  L.  R.  A.  33 ;  French  v.  Connecticut  River  Lumber 
Co.,  145  Mass.  261,  14  Northeastern  Rep.  113;  Ehrgott  v. 
Mayor,  96  N.  Y.  264,  275.  It  was  immaterial  that  no  claim 
was  made  that  itemized  accounts  of  the  costs  and  receipts  of 
the  business  had  been  kept.  This  absence  of  books  went 
simply  to  the  weight  of  the  evidence,  and  could  not  affect  the 
right  to  ask  for  such  an  estimate  of  the  profits  realized  as 
could  be  made  without  such  aid. 

The  force  of  the  evidence  as  to  the  profits  of  Mrs.  Corn- 
stock's  business  before  her  injury  depended,  so  far  as  the 
claim  for  compensation  for  losses  to  be  anticipated  in  the 
future  was  concerned,  on  comparing  them  with  what  they  had 
been  since  her  injury.  The  testimony  which  it  was  proposed 
to  give  as  to  the  latter  point  would  therefore  have  been  ad- 
missible. Illinois  Central  R.  Co.  v.  Davidson,  76  Fed.  Rep. 
517,  521,  22  C.  C.  A.  306. 


WAKEMAN   v.   WHEELER    AND    WILSON    MANU- 
FACTURING COMPANY. 

New  York,  1886.     101  N.  Y.  205. 

Earl,  J.  This  action  was  brought  to  recover  damages  for 
the  breach  of  an  agreement  made  in  the  city  of  New  York  in 
February,  1878,  which  is  set  forth  in  the  complaint  as  follows  : 
"That  if  the  plain  tills  shall  succeed  in  placing,  that  is  to  say, 
selling,  fifty  of  the  defendant's  sewing  machines  to  one  firm 
or  party  in  the  Republic  of  Mexico  during  the  next  trip  of 
their  agent  to  that  country  then  about  to  be  made,  they,  the 
plaintiffs,  for  every  fifty  machines  so  sold  shall  have  the  sole 
agency  for  the  sale  of  the  defendant's  sewing  machines  in  that 
locality  and  its  vicinity  in  that  Republic,  and  the  defendant 
should  furnish  to  the  plaintiffs  machines  at  the  lowest  net 


234  CASES  ON  DAMAGES. 

gold  prices."  The  defendant  denied  the  agreement,  but  the 
jury  found  it  substantially  as  alleged;  and  it  is  conceded  that 
we  must  assume  here  that  such  an  agreement  was  made. 
The  plaintiffs  at  once  entered  upon  the  performance  of  the 
agreement,  purchased  a  sample  machine  of  the  defendant, 
caused  their  agent  to  be  instructed  in  its  mechanism  and 
management,  and  then  sent  him  to  Mexico.  After  reaching 
there  he  sold  fifty  machines  to  one  Mead  of  San  Louis  Potosi, 
on  his  promise  to  Mead  that  he  should  be  the  general  agent 
of  the  defendant  for  that  locality  and  its  vicing.  The  order 
for  the  lift}*  machines  was  sent  to  the  defendant  and  filled  by 
it,  and  those  machines  were  forwarded  to  Mexico  and  paid 
for.  Shortly  thereafter  plaintiffs'  agent  made  another  sale  of 
fifty  machines  for  another  locality  in  Mexico,  and  an  order 
for  those  machines  was  sent  to  the  defendant,  which  it  abso- 
lutely refused  to  fill.  Plaintiffs'  agent  procured  another  order 
for  one  machine  and  sent  that  to  the  defendant,  which  it  also 
refused  to  fill ;  and  then  it  refused  to  fill  any  further  orders 
from  the  plaintiffs  or  their  agents,  and  absolutely  refused  to 
perform  and  repudiated  its  agreement.  Upon  the  trial  of  the 
action  the  plaintiffs  made  various  offers  of  evidence  to 
show  the  value  of  their  contract  with  the  defendant,  the  most 
of  which  were  excluded.  In  his  charge  to  the  jury  the  judge 
held  as  matter  of  law  that  the  plaintiffs  could  recover  damages 
only  for  the  refusal  of  the  defendant  to  fill  the  orders  actually 
given  ;  and  the  plaintiffs'  profits  having  been  shown  to  be  $4 
on  a  machine,  their  recovery  was  thus  limited  to  $204.  They 
excepted  to  the  rule  of  damages  thus  laid  down,  and  the  sole 
question  for  our  determination  is  what,  upon  the  facts  of  this 
case,  was  the  proper  rule  of  damages?  "Were  the  plaintiffs 
confined  to  the  damages  suffered  by  them  in  consequence  of 
the  refusal  of  the  defendant  to  fill  the  two  orders  for  fifty-one 
machines,  or  were  they  entitled  also  to  recover  the  damages 
which  the}'  sustained  by  a  total  breach  of  the  agreement  on 
the  part  of  the  defendant?  The  judge  limited  the  damages, 
as  stated  in  his  charge,  because  any  further  allowance  of  dam- 


WAKEMAN  v.   WHEELER  AND   WILSON  M'F'G  CO.     235 

ages  for  the  breach  of  the  agreement  would,  as  he  claimed,  be 
merely  speculative  and  imaginaiy. 

It  is  frequently  difficult  to  apply  the  rules  of  damages  and 
to  determine  how  far  and  when  opinion  evidence  may  be 
received  to  prove  the  amount  of  damages ;  and  the  difficulty 
is  encountered  in  a  marked  degree  in  this  case.  One  who 
violates  his  contract  with  another  is  liable  for  all  the  direct 
and  proximate  damages  which  result  from  the  violation. 
The  damages  must  be  not  merely  speculative,  possible,  and 
imaginary,  but  they  must  be  reasonably  certain,  and  such 
only  as  actually  follow  or  may  follow  from  the  breach  of  the 
contract.  They  may  be  so  remote  as  not  to  be  directly 
traceable  to  the  breach,  or  they  may  be  the  result  of  other  in- 
tervening causes,  and  then  they  cannot  be  allowed.  They  are 
nearly  always  involved  in  some  uncertainty  and  contingency  ; 
usually  they  are  to  be  worked  out  in  the  future,  and  the}'  can 
be  determined  only  approximately  upon  reasonable  conjectures 
and  probable  estimates.  They  may  be  so  uncertain,  contin- 
gent, and  imaginary  as  to  be  incapable  of  adequate  proof,  and 
then  they  cannot  be  recovered  because  they  cannot  be  proved. 
But  when  it  is  certain  that  damages  have  been  caused  by  a 
breach  of  contract,  and  the  only  uncertainty  is  as  to  their 
amount,  there  can  rarely  be  good  reason  for  refusing,  on  ac- 
count of  such  uncertainty,  any  damages  whatever  for  the 
breach.  A  person  violating  his  contract  should  not  be  per- 
mitted entirely  to  escape  liability  because  the  amount  of  the 
damages  which  he  has  caused  is  uncertain.  It  is  not  true 
that  loss  of  profits  cannot  be  allowed  as  damages  for  a  breach 
of  contract.  Losses  sustained  and  gains  prevented  arc  proper 
elements  of  damage.  Most  contracts  are  entered  into  with 
the  view  to  future  profits,  and  such  profits  are  in  the  con- 
templation of  the  parties,  and  so  far  as  they  can  be  properly 
proved,  they  may  form  the  measure  of  damage.  As  they  are 
prospective  they  must,  to  some  extent,  be  uncertain  and 
problematical,  and  yet  on  that  account  a  person  complaining 
of  breach  of  contract  is  not  to  be  deprived  of  all  remedy. 


236  CASES  ON  DAMAGES. 

It  is  usually  bis  right  to  prove  the  nature  of  his  contract,  the 
circumstances  surrounding  and  following  its  breach,  and  tbe 
consequences  naturally  and  plainly  traceable  to  it,  and  then  i 
it  is  for  the  jury,  under  proper  instructions  as  to  the  rules  of 
damages,  to  determine  the  compensation  to  be  awarded  for 
the  breach.  When  a  contract  is  repudiated  the  compensation 
of  the  party  complaining  of  its  repudiation  should  be  the 
value  of  the  contract.  He  has  been  deprived  of  his  contract, 
and  he  should  have  in  lieu  thereof  its  value,  to  be  ascertained 
by  the  application  of  rules  of  law  which  have  been  laid  down 
for  the  guidance  of  courts  and  jurors.1 

It  is  quite  clear  that  the  rules  of  damages  having  the  sanc- 
tion of  these  authorities  were  violated  upon  the  trial  of  this 
action.  The  plaintiffs  had  the  right  under  their  agreement  to 
establish  agencies  for  the  sale  of  defendant's  machines  any- 
where in  Mexico  where  they  could  sell  fifty  machines.  An. 
agency,  when  thus  established,  was  to  be  exclusive,  and  was 
to  have  some  permanency.  It  could  not  be  broken  up  at  the 
will  of  the  defendant  without  some  default  on  the  part  of  the 
plaintiffs.  That  the  agreement  had  some  value  to  the  plain- 
tiffs is  ver}-  clear,  and  of  that  value,  whatever  it  was,  they 
were  deprived  by  the  act  of  the  defendant.  It  is  quite  true 
that  that  value,  or  in  other  words,  the  damage  caused  to  the 
plaintiffs  by  the  total  breach  of  the  agreement  by  the  defend-  ! 
ant,  is  quite  uncertain  and  difficult  to  be  estimated.  But  the 
difficulty  is  not  greater  than  it  was  in  several  of  the  cases 
above  cited.  There  are  some  facts  upon  which  a  jury  could  x 
base  a  judgment,  not  certain  nor  strictly  accurate,  but  suffi- 
cientby  so  for  the  administration  of  justice  in  such  a  case. 
The  agent  whom  plaintiffs  sent  to  Mexico  was  apparentby  in- 
telligent, capable,  and  well  acquainted  with  Mexico.  Machines 
could  be  delivered  there,  for  about  $30  per  machine,  and 
could  then  be  sold  at  retail  for  about  $125.  The  profit  of  the 
plaintiffs  on  each  machine  was  about  $4.  Plaintiffs'  agents 
readily  made  sales  of  one  hundred  and  one  machines,  and 

1  The  court  here  cited  and  stated  a  number  of  authorities  bearing  on 
the  question. 


WAKEMAN  v.   WHEELER  AND   WILSON  M'F'G  CO.     237 

were  about  to  make  other  sales.  One  of  defendant's  agents 
subsequently  sold  in  a  single  city  twenty  machines  in  six 
months,  at  $125  each.  The  plaintiffs  had  established  two 
agencies,  and  to  the  value  of  such  agencies  at  least  they  were 
entitled.  Mead,  who  had  one  of  the  agencies,  testified  that 
he  had  made  arrangements  with  several  parties  to  sell  the 
machines  ;  that  he  had  all  the  facilities  for  carrying  on  an 
extensive  and  profitable  business,  and  was  well  acquainted 
with  the  countiy.  The  population  of  several  of  the  Mexican 
cities  in  which  plaintiffs'  agent  was  engaged  in  establishing 
agencies  was  shown.  From  all  these  and  other  facts  proved  it 
cannot  be  doubted  that  the  plaintiffs  suffered  damages  to  at 
least  several  hundred  dollars,  and  they  should  not  have  been 
deprived  of  the  damages  which  they  made  to  appear  because 
they  could  not  make  clear  the  full  amount  of  their  damages. 
All  the  facts  should  have  been  submitted  to  the  jury  with 
proper  instructions,  and  their  verdict,  not  based  upon  mere 
speculation  and  possibilities  but  upon  the  facts  and  circum- 
stances proved,  would  have  approached  as  near  the  proper 
measure  of  justice  as  the  nature  of  the  case  and  the  infirmity 
which  attaches  to  the  administration  of  the  law  will  admit.  In 
1  Sutherland  on  Damages,  113,  it  is  said:  "If  there  is  no  ) 
more  certain  method  of  arriving  at  the  amount,  the  injured 
party  is  entitled  to  submit  to  the  jury  the  particular  facts  which 
have  transpired,  and  to  show  the  whole  situation  which  is  the 
foundation  of  the  claim  and  expectation  of  profits  so  far  as 
any  detail  offered  has  a  legal  tendency  to  support  such 
claim." 

The  trial  judge  also  erred  in  excluding  evidence  which 
would  have  given  the  jur}T  some  aid  in  estimating  the  damages. 
The  plaintiffs  made  persistent  efforts  to  show  that  subse- 
quently to  the  repudiation  of  its  agreement,  the  defendant 
established  agencies  in  Mexico,  and  the  number  of  machines 
sold  through  such  agencies.  This  evidence  was,  upon  the 
objection  of  the  defendant,  excluded.  We  think  it  should 
have  been  received.     It  would  have  shown  the  market  for 


238  CASES  ON  DAMAGES. 

these  machines  there,  and  the  facility  with  which  they  could 
be  sold,  and  would  have  had  some  tendency  to  show  the 
extent  of  business  the  plaintiffs  could  have  done  there  and 
the  value  of  their  agreement. 

We  think  the  opinions  of  witnesses  as  to  the  value  of  the 
agreement,  as  to  the  profits  which  it  or  any  agency  established 
in  pursuance  of  it  could  produce,  as  to  the  damages  plaintiffs 
realized,  and  as  to  the  number  of  machines  they  could  have 
sold,  were  properly  excluded.  This  was  not  a  case  for  expert 
or  opinion  evidence.  There  was  no  certain  basis  of  facts 
proved,  or  facts  assumed  upon  which  an  opinion  could  be 
based.  The  conflicting  opinions  of  interested  witnesses, 
selected  because  of  their  favorable  opinions,  instead  of  aiding 
the  jury  would  probably  add  to  their  embarrassment.  The 
safer  rule  in  all  such  cases  is  to  exclude  opinions  and  receive 
the  facts,  and  then  leave  the  matter  for  the  determination  of 
the  jury.  They  may  not  have  any  certain  basis  upon  which 
to  rest  their  judgments,  but  that  cannot  be  helped.  The}'  are 
supposed  to  be  disinterested  and  must  apply  their  experience 
and  common  sense  to  the  facts  proved  and  reach  the  best 
results  they  can.  Our  views  as  to  opinion  evidence  were  so 
fully  expressed  in  Ferguson  v.  Hubbell,  97  N.  Y.  507,  that 
they  need  no  restatement  here.  We  have  no  means  of  know- 
ing that  the  views  expressed  by  Judge  Woodruff  in  Taylor 
v.  Bradley,  39  N.  Y.  129,  as  to  the  proof  of  the  damages,  by 
the  estimates  of  witnesses,  were  coincided  in  by  his  associates. 
The}-  were  not  necessary  to  the  decision  of  that  case,  and  we 
are  not  prepared  to  assent  to  them.  In  Mitchell  v.  Reed, 
84  N.  Y.  556,  the  opinions  of  witnesses  as  to  the  value  of  certain 
leases,  based  upon  certain  facts  assumed,  were  received.  No 
question  was  made  at  any  stage  of  that  case  that  the  opinions 
were  not  competent.  The  rule  as  to  opinion  evidence  was 
liberally  applied  in  that  case,  and  we  are  inclined  to  think 
property.  There  was  some  certain  basis  for  the  foundation 
of  opinions  by  experts  in  reference  to  the  worth  of  property 
which  had  salable  value. 


HOWE  MACHINE  CO.  v.   BRYSON.  239 

We  have  not  considered  the  bearing  of  the  statute  of  frauds 
upon  this  case,  as  no  point  or  reference  to  it  was  made  upon 
the  trial. 

Our  conclusion,  therefore,  is  that  this  judgment  should  be 
reversed  and  a  new  trial  granted,  costs  to  abide  event. 

All  concur. 

Judgment  reversed. 


HOWE  MACHINE  COMPANY   v.   BRYSON. 

Iowa,  1876.     44  la.  159. 

Adams,  J.  The  defendants  introduced  evidence  tending 
to  establish  the  breach  of  the  contract  by  Stebbins  &  Co.,  as 
set  up  in  the  answer ;  that  the}-  had  failed  to  supply  a  large 
number  of  machines  which  defendants  could  have  sold,  and 
proof  was  also  introduced  tending  to  show  that  defendants 
for  about  eight  months  had  devoted  their  whole  time  to  the 
business,  canvassing  the  county  for  'the  sale  of  machines 
and  introducing  them  to  the  attention  and  favor  of  the 
people ;  that  they  had  rented  a  room,  purchased  a  team  and 
made  other  preparations  for  the  prosecution  of  the  business  ; 
that  during  the  whole  time  they  were  making  almost  constant 
applications  for  machines,  and  a  number  were  supplied  them, 
but  insufficient  to  meet  the  demand  of  the  market,  and  that 
Stebbins  &  Co.  made  promises  and  held  out  inducements  for 
them  to  believe  that  a  sufficient  number  would  be  sent  them 
to  supply  the  demand  created  by  their  efforts  to  recommend 
them  to  the  public. 

Upon  this  evidence  the  court  gave  the  jury  the  following 
instructions :  — 

"  The  verbal  contract  alleged  in  the  defendants'  counter- 
claim is  a  contract  of  employment,  and  if  you  find  from  the 
evidence  that  it  has  been  sufficiently  proved,  and  that  J.  A. 
Stebbins  &  Co.  broke  the  contract  on  their  part,  and  that  the 
defendants  were  necessarily  idle,  because  of  such  breach  and 


240  CASES   ON  DAMAGES. 

suffered  injury  thereby,  then  for  such  breach  3*011  should 
allow  defendants  such  damages  as  would  make  them  whole 
for  such  breach,  and  in  considering  the  value  of  the  time 
which  defendants  were  necessarih*  idle,  }*ou  must  take  into 
consideration  in  this  case  the  fitness  of  defendants  for  the  ser- 
vices contracted  for,  the  preparations  and  appliances  which 
they  had  and  had  made  to  sell  the  machines,  the  market 
demand  for  such  machines  in  this  county  ;  and,  from  all  the 
evidence  and  circumstances  as  shown  in  evidence,  you  will 
determine  the  value  of  the  time  lost  by  defendants  by  reason 
of  the  breach  of  the  contract  by  Stebbins  &  Co. 

"  As  the  contract  alleged  is  one  for  the  entire  services  of 
defendants,  including  the  team,  and  as  there  is  no  agreement 
alleged  that  Stebbins  &  Co.  were  to  pay  for  the  keeping  of 
the  team  or  rent  of  room  or  for  advertising,  you  cannot  allow 
the  defendants  therefor. 

"  Under  the  contract  as  alleged,  the  defendants  would  be 
bound  to  furnish  the  team,  their  keeping,  and  to  pay  for  the 
room  rent  and  for  advertising,  and  their  compensation  for 
all  these  things  was  covered  b}-  the  discount  price  which 
defendants  were  to  have  from  the  retail  price  of  the  machines 
sold." 

The  giving  of  the  foregoing  instructions  is  assigned  as 
error. 

It  was  held  by  the  District  Court  that  the  defendants  are 
entitled  to  recover  the  value  of  the  time  during  which  they 
were  necessarily  idle.  In  directing  the  jury,  however,  as  to 
how  they  should  arrive  at  the  value  of  such  time  we  think  the 
court  erred. 

On  this  point  the  court  said :  "In  considering  the  value 
of  the  time  which  defendants  were  necessarily  idle  you  must 
take  into  consideration  the  fitness  of  the  defendants  for  the 
services  contracted  for,  the  preparations  and  appliances  which 
they  had  made  to  sell  the  machines,  and  the  market  demand 
for  such  machines  in  this  count}'."  , 

It  is  evident  from  the  foregoing  that  the  court  considered 
that  the  value  of  defendants'  time  was  to  be  estimated  with 


HOWE   MACHINE  CO.  v.  BRYSON.  241 

reference  to  the  profits  which  they  might  have  made  under 
the  contract  if  it  had  not  been  broken.  The  court  does  not, 
to  be  sure,  expressly  say  that  the  value  of  the  time  which 
defendants  lost  would  be  the  profits  which  they  might  have 
made,  but  if  the  market  demand  for  the  machines  was  to  be 
considered  in  arriving  at  the  value  of  the  time,  such  demand 
was  to  affect  its  estimate  ;  to  what  extent  the  court  does  not 
say.  We  are  of  the  opinion  that  the  defendants'  damages 
were  either  the  loss  of  profits  which  the}'  might  have  made  or 
the  value  of  the  time  during  which  they  were  idle,  estimated 
without  reference  to  the  profits,  with  their  reasonable  expen- 
ditures added.  We  know  of  no  way  of  estimating  loss  of 
time  with  reference  to  the  profits  which  might  have  been 
made  without  making  the  loss  of  profits  the  real  ground  of 
the  damages.  If  a  book-keeper  is  induced  to  discontinue  his 
ordinary  business  by  reason  of  being  employed  to  sell  goods 
upon  commission,  and  the  goods  are  not  furnished  and  he 
loses  time  while  holding  himself  in  readiness,  his  damages 
are  either  the  reasonable  value  of  such  a  book-keeper's  time, 
or  the  net  profits  which  might  have  been  made  if  the  contract 
had  not  been  broken.  The}'  are  certainly  far  from  identical, 
and  we  know  of  no  middle  ground  between  the  two.  The 
fact  that  the  value  of  defendants'  time  might  not  be  suscep- 
tible of  as  definite  estimation  as  that  of  a  book-keeper,  or 
other  person  engaged  in  some  well-defined  industry  in  gen- 
eral demand,  can  make  no  difference. 

The  real  question  in  this  case,  then,  is  :  Are  the  defendants 
entitled  to  recover  for  loss  of  time  or  loss  of  profits  ?  We 
are  of  the  opinion  that  they  are  entitled  to  recover  for  loss 
of  time.  To  this  should  be  added,  to  be  sure,  their  reasonable 
expenditures. 

We  would  not  be  understood  as  holding  that  where  a  per- 
son is  employed  to  sell  goods  on  commission  and  the  em- 
ployer fails  to  furnish  the  goods,  the  person  employed  may 
not  recover  for  loss  of  profits  which  he  might  have  made  if 
the  goods  had  been  furnished.  If  the  quantity  to  be  fur- 
nished was  a  definite  amount  and  the  demand  was  practically 

16 


242  CASES  ON  DAMAGES. 

unlimited,  possibly  he  might  be  allowed  to  recover  for  loss  of 
profits. 

But  where  a  person  employs  another  to  sell  on  commission  ^ 
all  the  goods  he  can  within  a  limited  territory,  especially  if  1 
the  goods  are  of  that  kind  of  which  there  is  no  regular  con-   \ 
sumption  or  demand,  the  case  is  quite  different ;  and  such  is 
the  present  case. 

The  number  of  sewing-machines  of  a  particular  kind  which 
can  be  sold  within  a  given  county  and  within  a  given  time,  is 
very  uncertain.  Few  cases  can  be  found  where  profits  have 
been  disallowed  as  speculative  in  which  the  uncertainty  is 
greater. 

Griffin  v.  Colver,  16  N.  Y.  490,  is  regarded  as  a  somewhat 
leading  case.  The  plaintiff  agreed  with  defendant  to  furnish 
a  steam-engine  to  drive  certain  machinery  used  for  planing 
lumber,  and  failed  to  do  so  within  the  time  agreed.  Suit 
being  brought  by  him  to  recover  for  the  engine,  the  defend- 
ant claimed  damages  for  loss  sustained  by  him  by  reason  of 
his  machinery  being  idle  between  the  time  the  engine  should 
have  been  furnished  and  the  time  it  was  furnished.  He 
claimed  that  he  was  entitled  to  recover  the  amount  of  the  net 
profits  which  would  have  been  made  if  the  engine  had  been 
furnished,  as  agreed.  It  was  held,  however,  that  such  was 
not  the  proper  measure  of  damages,  but  that  he  might  re- 
cover a  reasonable  compensation  for  the  investment  in  the 
machinery  during  the  time  the  same  was  idle.  The  general 
doctrine  is  succinctly  stated  by  Selden,  J.,  as  follows:  "It 
is  a  well-established  rule  of  the  common  law,  that  the  dam- 
ages to  be  recovered  for  a  breach  of  contract  must  be  shown 
with  certainty,  and  not  left  to  speculation  or  conjecture  ;  and 
it  is  under  this  rule  that  profits  are  excluded  from  the  esti- 
mate of  damages  in  such  cases,  and  not  because  there  is 
anything  in  their  nature  which  should,  per  se,  prevent  their 
allowance.  Profits  which  would  certainly  have  been  realized 
but  for  the  defendant's  default  are  recoverable  ;  those  which 
are  speculative  or  contingent  are  not."  Yet  the  difficulty 
of  determining  what  would   have   been   the   net  profits  of 


HOWE  MACHINE    CO.   v.  BRYSON.  243 

the  planing-mill  was  small  compared  with  the  difficult}-  of 
determining  what  profits  the  defendants  in  the  present 
case  would  have  made  upon  all  the  machines  which  they 
could  have  sold  in  the  county  of  Mitchell,  within  the  time  in 
question. 

If  the  demand  for  planed  lumber  had  been  limited  to  a 
territory,  and  such  demand  was  less  than  the  capacity  of 
the  mill,  that  case  would  have  been  somewhat  like  the  pres- 
ent one. 

In  Blanchard  v.  Ely,  21  Wend.  342,  plaintiff  brought  suit 
to  recover  for  building  a  steamboat.  The  defendant  showed 
that  a  part  of  the  machinery  was  defective,  and  that  by  reason 
thereof  he  failed  to  make  several  trips  with  the  boat  which  he 
would  have  made,  and  claimed  to  recover  for  loss  of  profits  on 
those  trips.  It  was  held  that  such  profits  were  too  uncertain, 
and  were  accordingly  disallowed.  Yet,  if  we  suppose  that 
the  boat  could  have  been  employed  to  its  full  capacity,  the 
profits  were  not  uncertain  in  an}-  such  sense  as  in  the  present 
case.  An  attempt  is  made  by  defendants  to  show  how  many 
sewing-machines  they  could  have  sold,  by  showing  how  many 
the}'  did  sell  during  the  time  they  were  supplied  with  them. 

But  this  basis  of  calculation  is  very  unreliable.  In  a  lim- 
ited territory  the  more  vigorous  the  canvass  has  been,  the  more 
nearly  it  is  exhausted.  The  number  of  machines  sold,  if 
large,  might  be  in  inverse  ratio  to  the  number  of  those  which 
could  thereafter  be  sold.  Yet  no  other  basis  of  calculation  is 
offered,  and  we  know  of  none  which  is  not  equally  unsatis- 
factory. It  is  certain  that  an  inventory  of  the  people  in  a 
county,  who  will  buy  a  sewing-machine  of  a  particular  kind, 
within  a  given  time,  cannot  be  taken. 

In  Masterton  v.  The  Mayor,  etc.,  of  Brooklyn,  7  Hill,  61, 
damages  were  allowed  for  loss  of  profits,  but  the  decision  was 
put  expressly  upon  the  ground  that  the  profits  did  not  de- 
pend upon  the  fluctuations  of  the  market,  or  the  chances  of 
business. 

The  appellees  rely  upon  Richmond  v.  The  Dubuque  & 
Sioux  City  B.  R.  Co.,  33  Iowa,  422.     In  that  case  the  plain- 


244  CASES  ON  DAMAGES. 

tiff  sought  to  recover  for  storage  on  grain.  He  had  erected 
an  elevator  at  great  expense  for  the  purpose  of  storing  grain 
for  the  defendant. 

Afterwards  the  defendant  made  a  different  arrangement, 
whereby  the  grain  shipped  upon  the  road  did  not  pass  through 
the  elevator.  The  evidence  which  was  offered  to  show  what 
the  storage  would  have  amounted  to  is  not  set  out  in  the 
opinion,  but  the  majority  of  the  court  thought  that  it  was 
sufficient  to  show  approximately  what  the  storage  would 
have  been.  If  so,  the  plaintiffs  were  of  course  entitled  to 
recover  the  amount  of  the  net  profits  which  would  have  been 
made. 

We  cannot  regard  that  case  as  decisive  of  the  present  one, 
nor  has  any  case  been  cited  which  to  our  mind  holds  the 
doctrine  for  which  the  appellees  contend. 

We  are  of  the  opinion,  therefore,  that  while  the  district 
court  was  correct  in  instructing  the  jury,  that  the  defendants 
might  recover  for  the  value  of  the  time  which  they  lost, 
the  court  erred  b}T  instructing  in  the  same  connection,  that 
the  jury  might  take  into  consideration  the  market  demand 
for  the  machines  in  the  county.  The  value  of  the  time 
which  the  defendants  lost  should  have  been  estimated  gener- 
ally, and  without  reference  to  the  profits  which  might  hare 
been  made  under  the  contract.  Reversed. 

Beck,  J.,  dissenting.  —  I  dissent  from  the  conclusion 
reached  by  my  brothers  in  the  foregoing  opinion,  and  will 
proceed,  as  briefly  as  I  can,  to  give  the  grounds  of  my  objec- 
tion thereto. 

I  am  of  the  opinion  that  the  instructions  given  by  the 
court  to  the  jury  fairly  present  the  rules  of  law  applicable  to 
the  case.  The  contract  in  question  is  clearly  one  of  employ- 
ment of  the  defendants.  They  were  to  devote  their  whole 
time  to  the  service  of  Stebbins  &  Co.,  in  the  sale  of  the 
machines.  The  compensation  was  to  depend  upon  their 
activit}-  and  capacity  for  the  business,  and  the  demand  for 
the  articles  to  be  sold,  conditions  which,  under  favorable  cir- 
cumstances, would  result  to  their  advantage,  and  under  any 


HOWE   MACHINE   CO.   v.   BRYSON.  245 

circumstances  would  be  favorable  to  the  interest  of  the  other 
contracting  party.  This  compensation  could  not  be  deter- 
mined by  the  value  of  the  labor  of  a  man  and  woman,  when 
hired  for  like  employment  upon  a  stipulated  or  customary 
salary.  In  such  a  case  the  emplojee  takes  no  risk  as  to  the 
demand  of  the  market  or  as  to  other  circumstances  which 
would  affect  sales,  but  in  this  case  such  risks  were  assumed 
by  defendants.  It  is  very  plain  that  they  ought  to  be  com- 
pensated in  the  manner  provided  by  the  contract,  which  was 
dependent  upon  the  machines  to  be  sold.  But,  as  Stebbins 
&  Co.  failed  to  supply  them  with  machines  to  meet  the  exist- 
ing demand,  it  became  necessary  for  the  jury  to  determine, 
under  the  evidence,  the  number  required  by  such  demand. 
The  fact  that  this  cannot  be  determined  with  entire  certaint\-, 
that,  to  a  great  extent,  the  question  depends  upon  collateral 
facts  and  the  opinion  of  the  witnesses,  cannot  defeat  defend- 
ants in  their  claim  for  just  compensation  on  account  of  the 
loss  they  sustain  by  the  default  of  the  other  party.  Defendants 
are,  in  justice,  entitled  to  receive,  as  compensation,  twenty- 
five  per  centum  of  the  proceeds  of  all  sales  that  would  have 
been  made  by  them  had  plaintiffs  performed  their  contract. 
If  defendants  cannot  be  permitted  to  establish,  by  competent 
proof,  facts  from  which  the  jury  can  reasonably  infer  the 
number  of  such  sales,  the  law  would  fail  to  render  them  just 
and  full  compensation  for  the  loss  sustained  by  the  breach  of 
the  contract.  See  Richmond  v.  Dubuque  &  S.  C.  R.  Co.,  26 
Iowa,  191  ;  s.  c,  33  Iowa,  422  ;  s.  c,  40  Iowa,  264  ;  Gilbert 
v.  Kennedy,  22  Mich.  117  ;  Cunningham  v.  Dorse}-,  6 
Cal.  19. 

In  Richmond  v.  Dubuque  &  S.  C.  R.  Co.,  the  plaintiff 
was  permitted  to  recover  the  profits  he  would  have  realized 
upon  handling  and  storing  grain,  which  would  have  been 
received  at  his  elevator,  had  defendant  performed  its  con- 
tract. These  profits  were  the  difference  between  the  cost  ot 
storing  and  handling  and  the  price  as  fixed  in  the  contract 
sued  upon.  The  contract  was  to  run  through  a  long  series 
of  years.     The  number  of  bushels  which  plaintiff  would  have 


246  CASES  ON  DAMAGES. 

stored  and  handled,  was  determined  by  evidence  which  re- 
lated to  the  demands  of  trade,  the  productions  of  the  coun- 
try, etc.,  etc.  The  impossibility  of  arriving  at  an  accurate 
estimate  of  the  business  that  would  have  been  done  was  not 
considered  an  impediment  to  plaintiff's  recovery ;  an  ap- 
proximation was  considered  sufficient. 

In  the  case  at  bar  defendants'  damages  are  established  by 
considering  like  facts,  which  can  be  proved  with  equal  cer- 
tainty. Other  cases,  of  like  import  with  those  cited,  can  be 
mentioned,  but  additional  authorities  are  not  deemed  neces- 
sary to  support  the  conclusion  I  have  reached  upon  this 
branch  of  the  case. 

Should  it  be  thought  that  defendants'  compensation  par- 
takes of  the  nature  of  the  profits  of  the  business  in  which, 
under  their  contract,  the}'  were  engaged,  this  does  not  pre- 
clude them  from  recovering  the  amount  the}'  would  have 
realized  had  plaintiff  supplied  them  with  the  machines  con- 
templated by  the  contract.  Profits  which  are  the  certain 
gains  that  would  have  resulted  from  the  performance  of 
the  contract  are  recoverable  as  damages.  Philadelphia, 
Wilmington,  etc.  R.  Co.  v.  Howard,  13  Howard,  307  ;  Hoy 
v.  Grumble,  34  Pa.  St.  9  ;  Cunningham  v.  Dorse}',  6 
Cal.  19. 

The  opinion  of  my  brothers  disregards  an  elementary  rule 
for  determining  damages  recoverable  upon  contracts.  It  is 
this:  "The  contract  itself  furnishes  the  measure  of  dam- 
ages."    Sedgwick's  Measure  of  Damages,  200. 

Here  is  a  contract  for  the  services  of  defendants  during  a 
time  fixed  therein.  Defendants  were  to  devote  their  time, 
with  the  use  of  a  team  and  room,  to  the  employment  speci- 
fied in  the  contract.  The  opinion  of  my  brothers  holds  that 
they  are  to  be  compensated  for  their  time,  "  the  loss  of 
time,"  and  for  the  use  of  the  team.  They  can  recover  only 
upon  the  contract,  for  their  services  were  to  be  given  under 
the  contract,  and  plaintiff  was  bound  in  no  other  manner 
than  by  this  contract.  The  contract  must  furnish  the  meas- 
ure of  damages  to  which  defendants  are  entitled  on  account 


HOWE   MACHINE    CO.   v.   BRYSON.  247 

of  plaintiff's  breach  thereof.  The}-  are  entitled  to  the  sum 
which  they  would  have  earned,  for  so  the  contract  provides, 
and  the  agreement  furnishes  the  data  upon  which  the  esti- 
mate of  their  earnings  may  be  made.  We  have  seen,  that 
because  an  element  of  profits  may  enter  into  the  damages, 
they  are  not  for  that  reason  to  be  denied.  Nor  is  it  a  suffi- 
cient ground  for  refusing  such  compensation,  to  show  that 
the  determination  of  the  exact  amount  of  such  damages  is 
impossible.  "  But  justice  is,  after  all,  but  an  approximate  sci- 
ence, and  its  ends  are  not  to  be  defeated  by  a  failure  of  strict 
and  mathematical  proof."  Sedgwick  on  Measure  of  Dam- 
ages, p.  635  (marg.  p.  593). 

Mr.  Justice  Story,  in  an  insurance  case,  uses  the  follow- 
ing language,  which  is  quoted  by  the  author  just  named  : 
"  Absolute  certainty  in  cases  of  this  sort  is  unattainable. 
All  we  can  arrive  at  is  an  approximation  thereto  ;  and  yet 
no  man  ever  doubted  that  such  a  loss  must  be  paid  for,  if  it 
is  covered  by  the  policy."  Rogers  v.  Mechanics'  Ins.  Co.,  1 
Story,  300. 

The  damages  which,  under  instructions  given  by  the  court, 
the  defendants  were  entitled  to  recover  are  no  more  uncertain 
than  those  recovered  in  Richmond  v.  The  Dubuque  &  Sioux 
City  Railway  Co.,  supra.  Like  the  damages  in  that  case, 
the}'  are  determined  by  the  contract  between  the  parties,  and 
the  cases  resemble  also  in  the  fact  that  elements  of  profit 
enter  largely  into  the  damages,  and  in  the  further  fact  that 
recoveiy  in  each  case  was  sought  for  services  and  expenses 
rendered  and  incurred  by  the  respective  parties.  Surely,  if 
it  was  admissible  to  show,  in  the  case  just  named,  how  many 
bushels  of  grain  plaintiff  would  handle,  for  which  he  was  to 
receive  one  or  two  cents  a  bushel,  and  from  which  was  to  be 
deducted  the  expenses  of  running  his  machinery  and  the  like, 
for  a  long  series  of  years,  thus  ascertaining  the  profits  he  was 
entitled  to  recover,  which  depended  largely  upon  the  course 
of  trade,  was  controlled  by  prices,  and  was  materially  affected 
by  the  character  of  the  seasons,  the  progress  of  improvements 
in  the  country,  etc.,  in  this  case  it  cannot  be  regarded  that 


248  CASES   ON   DAMAGES. 

the  evidence  establishing  the  number  of  machines  defendants 
would  have  sold  is  too  uncertain  to  authorize  the  recovery  of 
damages  based  thereon.  In  Richmond  v.  The  Dubuque  & 
Sioux  City  R'y  Co.  damages  were  estimated  upon  the  number 
of  bushels  of  wheat  which  would  have  been  handled  by  plain- 
tiff; in  this  case  defendants  claim  to  recover  for  the  number 
of  machines  they  would  have  sold.  I  am  unable  to  dis- 
tinguish between  the  cases  in  this  respect. 

In  my  opinion,  the  cases  cited  in  the  opinion  of  the  ma- 
jority of  the  court  are  not  applicable  to  the  point  they  are 
cited  to  support.  In  Griffin  v.  Colver,  16  N.  Y.  490,  the 
contract  upon  which  recovery  of  damages  was  sought  on 
account  of  its  breach  was  the  delivery  of  a  steam-engine.  It 
was  held  that  the  net  profits  of  the  use  of  the  machinery  for 
the  time  it  was  idle  on  account  of  the  non-delivery  of  the 
engine  did  not  constitute  plaintiff's  damage.  The  contract  in 
that  case  did  not  contemplate  the  use  of  the  engine,  but 
simply  provided  for  its  delivery.  The  damages  based  upon 
profits,  which  the  court  allowed  in  that  case  and  the  one  next 
named,  were  the  loss  sustained  by  the  respective  plaintiffs, 
upon  dependent  or  collateral  contracts  entered  into  upon  the 
expectation  of  the  performance  of  the  contracts  in  suit. 
They  were  not  the  direct  consequences  flowing  from  the 
contracts.  If  it  had  bound  the  contracting  party  to  furnish 
the  engine  for  use  during  a  specified  time,  to  supply  motive 
power  for  the  machineiy,  it  would  be  like  the  case  before  us, 
but  it  simply  involves  the  sale  of  property  and  failure  to 
deliver  it. 

Blanchard  v.  Ely,  21  Wend.  342,  is  a  case  like  the  other 
one  just  named.  It  involved  a  contract  for  building  a  steam- 
boat. Had  the  contract  provided  for  furnishing  a  steamboat 
for  use  for  a  certain  time,  it  would,  in  that  case,  have  been 
of  the  character  of  the  contract  in  the  case  before  us,  and  the 
defaulting  party  would  have  been  liable  for  the  loss  of  profits 
resulting  from  the  violation  of  his  obligation.  In  the  cases 
supposed,  as  the  one  in  hand,  the  contracts  themselves 
would  point  to  the  profits  as  the  damages  sustained  in  their 
violation. 


HOWE  MACHINE  CO.   v.   BRYSON.  249 

Defendants  in  this  case  were,  under  the  contract,  to  render 
certain  services  for  plaintiff,  which  failed  to  give  them  em- 
ployment ;  the  compensation  provided  for  in  the  contract  is 
the  measure  of  damages.  That  this  compensation  may  be 
approximately  shown,  and  the  law  requires  nothing  more,  I 
think,  cannot  be  doubted. 

The  twenty-five  per  centum  upon  the  prices  of  the  ma- 
chines sold  or  to  be  sold  by  defendants,  cannot  be  regarded 
as  profits.  It  was  simply  the  manner  of  fixing  in  the  con- 
tract defendants'  compensation,  and  no  idea  of  profits  enters 
into  it.  But  should  profits  enter  into,  and  become  a  part  of 
defendants'  compensation,  which  would  be  increased  by  cer- 
tain contingencies,  they  must  nevertheless  be  considered  in 
ascertaining  the  damages  recoverable  for  a  violation  of  the 
contract.  If  defendants'  compensation  depended  wholly  upon 
profits  of  the  business,  they  could  recover  under  the  contract 
whatever  profits  they  would  have  earned.  Masterton  v.  The 
City  of  Brooklyn,  7  Hill,  61,  cited  in  the  majority  opinion 
supports  this  position.  In  that  case  the  plaintiff  had  con- 
tracted with  defendant,  to  deliver  a  large  quantity  of  marble 
which  would  require  the  labor  of  five  years.  After  the  de- 
livery of  a  part  of  the  marble  (payment  being  made  there- 
for), defendant  refused  to  receive  anymore,  and  thereupon 
plaintiff  brought  suit  on  the  contract,  and  recovered  872,999 
damages.  The  court  used  the  following  language  in  its 
opinion:  "When  the  books  and  cases  speak  of  the  profits 
anticipated  from  a  good  bargain,  as  .matters  too  remote  and 
uncertain  to  be  taken  into  account  in  ascertaining  the  measure 
of  damages,  they  usually  have  relation  to  dependent  and  col 
lateral  engagements,  entered  into  on  the  faith  and  in  expec- 
tation of  the  performance  of  the  principal  contract.  .  .  . 
But  profits  or  advantages  which  are  the  direct  and  imme- 
diate fruits  of  the  contract  entered  into  between  the  parties, 
stand  upon  a  different  footing.  These  are  part  and  parcel  of 
the  contract  itself,  entering  into  and  constituting  a  portion 
of  its  very  element ;  something  stipulated  for,  the  right  to  the 
enjoyment  of  which  is  just  as  clear  and  plain  as  the  fulfil- 


250  CASES  ON  DAMAGES. 

ment  of  any  other  stipulation.  The}*  are  presumed  to  have 
been  taken  into  consideration,  and  deliberated  upon  before 
the  contract  was  made,  and  formed  perhaps  the  only  induce- 
ment to  the  arrangement." 

I  think  I  have  shown  that  the  contract  provides  for  the 
compensation,  which  the  instructions  given  by  the  court  au- 
thorized the  jury  to  find  as  defendants'  damages.  These 
damages  are  provided  for  by  the  contract  itself.  That  they 
may  be  proved  to  that  degree  of  approximation  required  by 
the  law,  I  cannot  doubt.  In  this  respect,  the  case  is  suscep- 
tible of  a  nearer  approximation  to  the  exact  amount  of 
damages  sustained,  than  could  have  been  attained  in  Rich- 
mond v.  The  Dubuque  &  Sioux  City  R'y  Co. 

The  limitation  of  defendants'  damages  to  the  value  of 
their  services  during  the  time  they  were  employed,  as  is 
done  in  the  majority  opinion,  deprives  them  of  the  real 
benefits  of  the  contract,  and  fixes  their  compensation  at 
an  amount  not  provided  for  therein.  This  the  law  will 
not  do. 

The  decision  in  this  case,  in  my  judgment,  misapplies  the 
rules  of  the  law,  works  injustice  to  defendants,  and  will 
prove  mischievous  as  a  precedent. 

Day,  J.  I  concur  in  the  conclusions  of  the  dissenting 
opinion  of  my  brother  Beck.  The  measure  of  damages 
should  depend  upon  and  bear  a  relation  to  the  contract,  for 
the  breach  of  which  damage  is  claimed.  A  party  who  has  a 
contract  for  service  by  the  month,  either  with  or  without 
stipulation  as  to  price,  sustains  a  damage  by  the  breach  of 
the  contract,  which  is  susceptible  of  easy  determination.  If 
he  has  not  neglected  to  avail  himself  of  opportunities  for 
employment,  the  measure  of  his  damage  is  the  sura  agreed  to 
be  paid,  or  the  reasonable  value  of  his  services  for  the  time 
for  which  he  was  employed.  A  party  who,  like  these 
defendants,  has  a  contract  under  which  he  is  to  receive  a 
certain  per  centum  upon  specific  articles  sold,  may  make  much 
more  or  much  less  than  the  part}'  w*ho  is  employed  by  the 
month.      If  there  is  a  breach  of  his  contract,   he  may  be 


BRIGHAM  v.   CARLISLE.  251 

damaged  much  more,  or  much  less,  than  the  other.  I{ 
damaged  less,  he  ought  not  to  recover  as  much  ;  if  damaged 
more,  he  ought  to  be  compensated  for  his  loss.  In  case  of  a 
breach  of  contract  these  two  persons  ought  not  to  be  reduced 
to  the  same  measure  of  recovery.  The  law  ought  not  to  con- 
struct a  Procrustean  bed,  upon  which  both  parties  are  com- 
pelled to  lie,  and  which  both,  even  by  mutilation  if  necessaiy, 
are  compelled  to  fit. 


BRIGHAM  v.  CARLISLE. 

Alabama,  1884.     78  Ala.  243. 

Clopton,  J.1  The  material  question  is  the  measure  of 
damages.  The  primarj'  purpose  of  awarding  damages  is 
actual  compensation  to  the  party  injured,  whether  by  a  tort 
or  by  breach  of  contract,  though  there  are  exceptional  cases, 
in  which  exemplary  or  punitive  damages  are  allowed.  Owing 
to  the  ever-occurring  differences  in  the  circumstances,  and  in 
the  special  conditions  of  the  contracting  parties,  it  has  been 
found  difficult,  if  not  impossible,  to  lay  down  general  and 
definite  rules  as  to  the  measure  of  damages,  applicable  to  all 
cases  of  a  class.  From  a  misconstruction  of  expressions  of 
eminent  jurists,  not  sufficiently  guarded  for  general  use,  but 
adapted  to  the  case  in  hand,  the  applications  of  rules,  com- 
monly recognized,  have  been  as  various  as  the  cases.  The 
proposition,  that  all  damages  arc  recoverable  which  are  in 
the  contemplation  of  the  parties,  is  not  strictly  correct.  The 
primary  rules  are,  the  damages  must  be  the  natural  and 
proximate  results  of  the  wrong  complained  of  and  the  law 
must  not  be  merely  speculative,  or  conjectural.  These  must 
concur,  though  founded  on  different  principles,  and  are  dis- 
tinct and  independent  of  each  other.  The  law  presumes  that 
a  part}'  foresees  the  natural  and  proximate  results  of  a  breach 
of  his  contract  or  tort,  and  hence  these  are  presumed  to  be 

1  Part  of  the  opinion  is  omitted. 


252  CASES  ON  DAMAGES. 

in  his  legal  contemplation.  For  such  damages,  as  a  general 
rule,  the  party  at  fault  is  liable. 

But  tbere  are  damages,  wbicb  are  in  tbe  contemplation  of 
tbe  parties  at  tbe  time  of  making  tbe  contract,  and  are  tbe 
natural  and  proximate  results  of  its  breach,  whicb  are  not 
recoverable.  Tbe  parties  must  necessarily  contemplate  tbe 
loss  of  profits  as  tbe  direct  and  necessary  consequence  of 
tbe  breacb  of  a  contract,  and  yet  all  profits  are  not  witbin 
the  scope  of  recoverable  damages.  Tbere  are  numerous  cases 
however  in  which  profits  constitute,  not  only  an  element,  but 
tbe  measure  of  damage.  While  the  line  of  demarcation  is 
often  dim  and  shadowy,  the  distinctive  features  consist  in  the 
nature  and  character  of  the  profits.  When  they  form  an 
elemental  constituent  of  the  contract,  their  loss,  the  natural 
result  of  its  breach,  and  the  amount  can  be  estimated  with 
reasonable  certainty,  such  certainty  as  satisfies  the  mind  of  a 
prudent  and  impartial  person,  they  are  allowed.  The  requi- 
site to  their  allowance  is  some  standard,  as  regular  market 
values  or  other  established  data,  by  reference  to  which  the 
amount  ma}*  be  satisfactorily  ascertained.  Illustrations  of 
profits  recoverable  are  found  in  cases  of  sales  of  personal 
property  at  a  fixed  price,  evictions  of  tenants  by  landlords, 
articles  of  partnership,  and  many  commercial  contracts. 

On  the  other  hand,  "  mere  speculative  profits,  such  as 
might  be  conjectured  would  be  the  probable  result  of  an  ad- 
venture, defeated  by  tbe  breacb  of  a  contract,  the  gains  from 
which  are  entirely  conjectural,  and  with  respect  to  whicb  no 
means  exist  of  ascertaining  even  approximately  the  probable 
results,  cannot  under  any  circumstances  be  brought  within 
the  range  of  recoverable  damages."  1  Suth.  Dam.  141. 
Profits  speculative,  conjectural,  or  remote,  are  not  generally 
regarded  as  an  element  in  estimating  the  damages.  In  Pol- 
lock v.  Gantt,  69  Ala.  373  ;  s.  c,  44  Am.  Rep.  519,  it  is  said  : 
"What  are  termed  speculative  damages  —  that  is  possible, 
or  even  probable  gains,  that  it  is  claimed  would  have  been 
realized,  but  for  the  tortious  act  or  breacb  of  contract  charged 
against  a  defendant  —  are  too  remote,  and  cannot  be  recov- 


BRIGHAM  v.   CARLISLE.  253 

ered."  The  same  rule  has  been  repeatedly  asserted  by  this 
court.  Culver  v.  Hill,  68  Ala.  66  ;  Higgius  v.  Mansfield, 
62  Ala.  267  ;  Burton  v.  Holley,  29  Ala.  318  ;  s.  c,  65  Am. 
Dec.  401;  White  v.  Miller,  71  N.  Y.  118;  s.  c,  27  Am. 
Rep.  13 ;  French  v.  Ramge,  2  Neb.  254 ;  2  Smith  Lead. 
Cases,  574  ;  Olmstead  v.  Burke,  25  111.  86.  The  two  follow- 
ing cases  may  serve  to  illustrate  the  difference  between  profits 
recoverable  and  not  recoverable.  In  iEtna  Life  Ins.  Co.  v. 
Nexsen,  84  Ind.  347;  s.  c,  43  Am.  Rep.  91,  ail  insurance 
agent,  who  had  been  discharged  without  cause  before  the 
expiration  of  his  contract,  was  allowed  to  include  in  his  re- 
covery the  probable  value  of  renewals  on  policies  previously 
obtained  bj-  him,  upon  which  future  premiums  would,  in  the 
usual  course  of  business,  be  received  by  the  company,  on  the 
ground  that  the  amount  of  compensation,  due  on  such  renew- 
als, can  be  ascertained  with  requisite  certainty  by  the  use  of 
actuaiy's  life-tables  and  comparisons,  and  that  the  basis  of 
the  right  to  damages  existed,  and  was  not  to  be  built  in  the 
future.  In  Lewis  v.  Atlas  Mut.  Ins.  Co.,  61  Mo.  534,  which 
is  cited  with  approval  in  the  other  case,  the  same  rule  as  to 
the  probable  value  of  renewals  was  held,  but  it  was  also  held, 
that  an  estimate  of  the  probable  earnings  of  the  agent  there- 
after, derived  from  proof  of  the  amount  of  his  collections 
and  commissions  before  the  breach  of  the  contract,  in  the 
absence  of  other  proof,  is  too  speculative  to  be  admissible. 

Profits  are  not  excluded  from  recoveiy,  because  they  are 
profits  ;  but  when  excluded,  it  is  on  the  ground  that  there  are 
no  criteria  by  which  to  estimate  the  amount  with  the  certainty 
on  which  the  adjudications  of  courts,  and  the  findings  of 
juries  should  be  based.  The  amount  is  not  susceptible  of 
proof.  In  3  Suth.  Dam.  157,  the  author  discriminatingly  ob- 
serves :  '•  When  it  is  advisedly  said  that  profits  are  uncertain 
and  speculative,  and  cannot  be  recovered,  when  there  is  an 
alleged  loss  of  them,  it  is  not  meant  that  profits  are  not 
recoverable  merely  because  they  are  such,  nor  because  profits 
are  necessariby  speculative,  contingent,  and  too  uncertain  to 
be  proved ;  but  they  are  rejected  when  they  are  so ;  and  it  is 


254  CASES  ON  DAMAGES. 

probable  that  the  inquiry  for  them  has  been  generally  pro- 
posed when  it  must  end  in  fruitless  uncertainty  ;  and  there- 
fore it  is  more  a  general  truth  than  a  general  principle,  that  a 
loss  of  profits  is  no  ground  on  which  damages  can  be  given." 
When  not  allowed  because  speculative,  contingent,  and  uncer- 
tain, their  exclusion  is  founded  by  some  on  the  ground  of 
remoteness,  and  by  others,  on  the  presumption  that  they  are 
not  in  the  legal  contemplation  of  the  parties. 

The  plaintiff,  by  the  contract,  undertook  the  business  of 
travelling  salesman  for  the  defendants.  The  amount  of  his 
commissions  depended  not  merely  on  the  number  and  amounts 
of  sales  he  might  make,  but  also  on  the  proportional  quan- 
tity of  the  two  classes  of  goods  sold,  his  commissions  being 
different  on  each.  The  number  and  amounts  of  sales  de- 
pended on  many  contingencies,  the  state  of  trade,  the  demand 
for  such  goods,  their  suitableness  to  the  different  markets,  the 
fluctuations  of  business,  the  skill,  energy,  and  industry  with 
which  he  prosecuted  the  business,  the  time  employed  in 
effecting  different  sales,  and  upon  the  acceptance  of  sales  by 
the  defendants.  There  are  no  criteria,  no  established  data, 
by  reference  to  which  the  profits  are  capable  of  anjr  estimate. 
The}'  are  purely  speculative  and  conjectural.  Besides,  the 
evidence  is  the  mere  opinion  and  conjecture  of  the  plaintiff 
without  giving  any  facts  on  which  it  was  based.  The  bare 
statement,  uncorroborated  by  any  facts,  and  without  a  basis, 
that  "the  reasonable  sales  would  have  been  $15,000,  and 
that  the  net  profits  on  that  amount  of  sales  would  have  been 
$450,"  is  too  conjectural  to  be  admissible.  Washburn  v. 
Hubbard,  6  Lans.  11. 

Judgment  reversed  and  remanded 


CHICAGO  v.   HUENERBEIN. 

Illinois,  1877.     85  111.  594. 

Mr.  Justice  Walker  delivered  the  opinion  of  the  court. 
This  was  an  action  of  case,  against  the  city  of  Chicago,  to 


CHICAGO   v.   HUENEREEIN.  255 

recover  damages  produced  by  throwing  stone,  earth,  etc.,  into 
the  mouth  of  a  small  stream  that  usually  discharged  into  the 
canal,  whereby  water  was  dammed  and  flowed  back  on  the 
land,  and  six  or  seven  acres  could  not  be  planted  or  culti- 
vated during  the  years  1871,  1872,  and  1873.  The  court  be- 
low permitted  appellee  to  prove  that  if  the  land  hud  been 
planted  with  potatoes,  the  ground  would  have  yielded  two 
hundred  bushels  to  the  acre,  and  that  they  would  have  sold 
at  about  an  average  of  seventy  cents  per  bushel  when  ma- 
tured, and  that  it  would  have  cost  about  $35  per  acre  to 
plant,  cultivate,  and  market  the  potatoes.  And  thus  it  was 
claimed  that  the  land  would  have  yielded  in  the  aggregate 
near  3,550  bushels,  and  would  have  sold  for  a  much  larger 
sum  than  was  found  by  the  jury. 

On  this  evidence  the  jury  found  a  verdict  for  plaintiff  for 
the  sum  of  $1,250,  and  the  court,  after  overruling  a  motion 
for  a  new  trial,  rendered  judgment  on  the  verdict,  and  the 
city  appeals. 

The  damages  in  this  case  are  excessive,  and  the  judgment 
must  be  reversed.  The  rule  for  the  assessment  of  damages 
was  wrong.  In  cases  of  this  character  the  true  measure  is 
the  fair  rental  value  of  the  ground  which  was  overflowed,  and 
not  the  possible,  or  even  the  probable  profits  that  might  have 
been  made,  had  the  land  not  been  overflowed.  Such  dam- 
ages are  too  remote  and  speculative,  depending  on  too  large 
a  variety  of  contingencies  which  might  never  have  happened. 
The  result  of  the  application  of  the  rule  in  this  case  shows  its 
wrong  and  injustice.  Here  the  rule  adopted  gave  appellee 
nearly  $74  per  acre  as  an  annual  rent.  This  manifests  the 
incorrectness  of  the  rule. 

But  the  case  of  the  Chicago  and  Rock  Island  R.  R.  Co.  v. 
Ward,  16  111.  522,  is  referred  to,  as  sustaining  the  rule 
adopted  by  the  court  below.  That  case,  in  some  of  its  fea- 
tures, is  like  the  case  at  liar.  In  (hat  case  it  was  held,  the 
proof  of  the  average  value  of  the  crop  at  maturity  was  proper, 
as  a  means  of  ascertaining  its  value  when  destroyed.  But 
there,  the  crop  was  planted,  and  partly  if  not  fully  cultivated 


256  CASES  ON  DAMAGES. 

when  destined,  whilst  here  no  crop  was  ever  planted,  nor 
was  any  preparation  made  to  plant  the  ground.  It  was  over- 
flowed before  the  planting  season  had  arrived.  But  even  if 
the  principle  there  announced  is  broad  enough  to  embrace 
the  rule  adopted  in  this  case,  we  must  hold  that  it  should 
not  be  adopted  as  the  measure  of  damages.  We  see  that  it 
has  produced  wrong  and  injustice.  The  rule  announced  in 
that  case  has  not  been  followed  in  subsequent  cases.  See 
Olmstead  v.  Burke,  25  111.  86  ;  Cilley  v.  Hawkins,  48  111. 
308  ;  Green  v.  Williams,  45  111.  206,  and  Chapman  v.  Kirby, 
49  111.  211. 

Inasmuch  as  this  land  was  not  planted,  and  no  one  could 
know  or  calculate  with  any  degree  of  certainty  what  such  a 
crop  would  have  produced  had  the  ground  been  planted,  the 
only  certain  measure  of  damages  is  the  rental  value  of  the 
land  thus  overflowed,  and  the  use  of  which  appellee  was  de- 
prived. Any  other  is  speculative  and  uncertain.  Crops  not 
planted  are  not  in  existence,  and  if  planted  are  liable  to  so 
large  a  number  of  contingencies  and  accidents,  that  what 
they  may  yield  can  only  be  a  matter  of  conjecture ;  and  what 
land  might  produce,  and  what  the  crop  would  sell  for  when 
produced,  is  too  uncertain  to  be  adopted  as  a  rule  for  the 
measure  of  damages  when  a  person  has  been  deprived  of  the 
use  of  land. 

Objections  have  been  urged  to  the  declaration,  but  leave  is 
given  to  appellee,  if  he  choose,  to  amend,  so  as  to  remove 
the  objections  urged. 

For  the  error  indicated,  the  judgment  of  the  court  below  is 
reversed,  and  the  cause  remanded. 

Judgment  reversed. 

WESTERN  UNION  TELEGRAPH  CO.  v.  HALL. 

United  States  Supreme  Court,  1888.     124  U.  S.  444. 

Plaintiff  furnished  to  defendant,  a  telegraph  company, 
the  following  message  for  immediate  transmittal :  "  Buy  ten 
thousand  if  vou  think  it  safe.     Wire  me."     Through  the  neg- 


WESTERN  UNION  TELEGRAPH  CO.  v.   HALL.        257 

ligence  of  defendant  the  delivery  cf  the  message  was  delayed 
from  11.30  a.m.  to  G  p.m.,  on  November  9th,  1882.  The 
meaning  of  the  despatch  was  to  direct  Charles  T.  Hall,  to 
whom  it  was  addressed,  to  buy  ten  thousand  barrels  of  petro- 
leum if  in  his  judgment  it  was  best  to  do  so.  Had  the 
despatch  upon  its  first  receipt  at  Oil  City,  Pa.,  been  promptly 
delivered  to  Charles  T.  Hall,  he  would,  by  12  m.  of  November 
9th,  have  purchased  ten  thousand  barrels  of  petroleum  at  the 
then  market  price  of  $1.17  per  barrel  for  the  plaintiff.  When 
the  despatch  was  delivered  to  Charles  T.  Hall,  the  exchange 
had  been  closed  for  that  day,  so  that  said  Hall  could  not  then 
purchase  the  petroleum  ordered  by  plaintiff.  At  the  opening 
of  the  board  the  next  day  the  price  had  advanced  to  81.35 
per  barrel,  at  which  rate  said  Charles  T.  Hall  did  not  deem 
it  advisable  to  make  the  purchase,  and  hence  did  not  do  so. 

It  is  not  disclosed  in  the  evidence  whether  the  price  of 
petroleum  has  advanced  or  receded  since  that  date,  Nov.  10, 
1882.1 

Matthews,  J.  The  view  we  take  of  this  case  requires  us, 
in  answer  to  the  fourth  question  certified,  to  say  that,  in  the 
circumstances  disclosed  by  the  record,  the  plaintiff  was  en- 
titled only  to  recover  nominal  damages,  and  not  the  difference 
in  value  of  the  oil  if  it  had  been  purchased  on  the  day  when 
the  message  ought  to  have  been  delivered  and  the  market 
price  to  which  it  had  risen  on  the  next  day.  As  the  judg- 
ment was  rendered  in  his  favor  for  the  latter  sum,  it  must  be 
reversed  on  that  account,  and,  upon  the  facts  found  by  the 
court,  judgment  rendered  for  nominal  damages  only,  which 
finally  disposes  of  the  litigation.  It,  therefore,  becomes  un- 
necessary to  consider  or  decide  any  of  the  other  questions 
certified  to  us. 

It  is  found  as  a  fact  that  if  the  despatch  upon  its  first 
receipt  at  Oil  City  had  been  promptly  delivered  to  Charles  T. 
Hall,  to  whom  it  was  addressed,  he  would  by  twelve  o'clock 
on  that  day  have  purchased  ten  thousand  barrels  of  oil  at  the 
market  price  of  $1.17  per  barrel  on  the  plaintiff's  account 
1  The  statement  of  facts  has  been  condensed. 
17 


258  CASES   ON  DAMAGES. 

He  was  unable  to  do  so  in  consequence  of  the  delay  in  the 
delivery  of  the  message.  On  the  next  day  the  price  had  ad- 
vanced to  $1.35  per  barrel,  and  no  purchase  was  made  because 
Charles  T.  Hall,  to  whom  the  message  was  addressed,  did  not 
deem  it  advisable  to  do  so,  the  order  being  conditional  on  his 
opinion  as  to  the  expediency  of  executing  it.  If  the  order 
had  been  executed  on  the  day  when  the  message  should  have 
been  delivered,  there  is  nothing  in  the  record  to  show  whether 
the  oil  purchased  would  have  been  sold  on  the  plaintiff's 
accouut  on  the  next  day  or  not ;  or  that  it  was  to  be  bought 
for  resale.  There  was  no  order  to  sell  it,  and  whether  or  not 
the  plaintiff  would  or  would  not  have  sold  it  is  altogether  un- 
certain. If  he  had  not  done  so,  but  had  continued  to  hold 
the  oil  bought,  there  is  also  nothing  in  the  record  to  show 
whether,  up  to  the  time  of  the  bringing  of  this  action,  he 
would  or  would  not  have  made  a  profit  or  suffered  a  loss,  for 
it  is  not  disclosed  in  the  record  whether  during  that  period 
the  price  of  oil  advanced  or  receded  from  the  price  at  the 
date  of  the  intended  purchase.  The  only  theory,  then,  on 
which  the  plaintiff  could  show  actual  damage  or  loss  is  on  the 
supposition  that,  if  he  had  bought  on  the  9th  of  November, 
he  might  and  would  have  sold  on  the  10th.  It  is  the  differ- 
ence between  the  prices  on  those  two  days  which  was  in  fact 
allowed  as  the  measure  of  his  loss. 

It  is  clear  that  in  point  of  fact  the  plaintiff  has  not  suffered 
any  actual  loss.     No  transaction  was  in  fact  made,  and  there 
being  neither  a  purchase  nor  a  sale,  there  was  no  actual  differ- 
ence between  the  sums  paid  and  the  sums  received  in  conse- 
quence of  it,  which  could  be  set  down   in  a  profit  and  loss 
account.     All  that  can  be  said  to  have  been  lost  was  the 
opportunity  of  buying  on  November  9th,  and  of  making  a  ^ 
profit  by  selling  on  the   10th,  the  sale  on  that  day  being      A 
purely  contingent,  without  anything  in  the  case  to  show  that  ^     .fl" 
it  was  even  probable  or  intended,  much  less  that  it  would  cer-    j  -•" 
tainly  have  taken  place. 

It  has  been  well  settled  since  the  decision  in  Masterton  v. 
The  Mayor  of  Brooklyn,  7  Hill,  61,  that  a  plaintiff  may  right 


WESTEEN  UNION  TELEGEAPH  CO.  v.   HALL.        259 

full}-  recover  a  loss  of  profits  as  a  part  of  the  damages  for 
breach  of  a  special  contract,  but  in  such  a  case  the  profits  to 
be  recovered  must  be  such  as  would  have  accrued  and  grown 
out  of  the  contract  itself  as  the  direct  and  immediate  result  of 
its  fulfilment.  In  the  language  of  the  Supreme  Judicial  Court 
of  Massachusetts  in  Fox  v.  Harding,  7  Cush.  51G  :  "These 
are  part  and  parcel  of  the  contract  itself,  and  must  have  been 
in  the  contemplation  of  the  parties  when  the  agreement  was 
entered  into.  But  if  they  are  such  as  would  have  been  real- 
ized by  the  party  from  other  independent  and  collateral  un- 
dertakings, although  entered  into  in  consequence  and  on  the 
faith  of  the  principal  contract,  then  they  are  too  uncertain 
and  remote  to  be  taken  into  consideration  as  a  part  of  the 
damages  occasioned  by  the  breach  of  the  contract  in  suit" 
(p.  522).  This  rule  was  applied  by  this  court  in  the  case  of 
The  Philadelphia,  Wilmington,  and  Baltimore  Railroad  v. 
Howard,  13  How.  307.  In  Griffin  v.  Colver,  16  N.  Y.  489, 
the  rule  was  stated  to  be  that  "  the  damages  must  be  such  as 
may  fairly  be  supposed  to  have  entered  into  the  ♦contempla- 
tion of  the  parlies  when  they  made  the  contract ;  that  is,  they 
must  be  such  as  might  naturally  be  expected  to  follow  its  vio- 
lation ;  and  they  must  be  certain  both  in  their  nature  and  in 
respect  to  the  cause  from  which  they  proceed.  The  familiar 
rules  on  this  subject  are  all  subordinate  to  these.  For  in- 
stance, that  the  damages  must  flow  directly  and  naturally 
from  the  breach  of  contract,  is  a  mere  mode  of  expressing 
the  first ;  and  that  they  must  be  not  the  remote  but  proxi- 
mate consequence  of  such  breach,  and  must  not  be  specu- 
lative or  contingent,  are  different  modifications  of  the  last " 
(p.  495). 

In  Booth  v.  Spuyten  Duyvil  Rolling  Mills  Co.,  GO  N.  Y. 
487,  the  rule  was  stated  to  be  that  "  the  damages  for  which  a 
party  may  recover  for  a  breach  of  a  contract  are  such  as  ordi- 
narily and  naturally  flow  from  the  non-performance.  They 
must  be  proximate  and  certain,  or  capable  of  certain  ascer- 
tainment, and  not  remote,  speculative,  or  contingent  "  (p.  492). 
In  White  v.  Miller,  71  N.  Y.  118,  133,  it  was  said:  "  Gains 


260  CASES   ON  DAMAGES. 

prevented,  as  well  as  losses  sustained,  may  be  recovered  as 
damages  for  a  breach  of  contract,  when  they  can  be  rendered 
reasonably  certain  by  evidence,  and  have  naturally  resulted 
from  the  breach." 

In  cases  of  executor}'  contracts  for  the  purchase  or  sale  of 
personal  property  ordinarily,  the  proper  measure  of  damages 
is  the  difference  between  the  contract  price  and  the  market 
price  of  the  goods  at  the  time  when  the  contract  is  broken. 
This  rule  may  be  varied  according  to  the  principles  established 
in  Hadley  v.  Baxendale,  9  Exch.  341  ;  s.  c,  23  L.  J.  Ex.  179, 
where  the  contract  is  made  in  view  of  special  circumstances 
in  contemplation  of  both  parties.  That  well-known  case,  it 
will  be  remembered,  was  an  action  against  a  carrier  to  recover 
damages  occasioned  by  delay  in  the  delivery  of  an  article,  by 
reason  of  which  special  injury  was  alleged.  In  the  application 
of  the  rule  to  similar  cases,  where  there  has  been  delay  in  de- 
livering by  a  carrier  which  amounts  to  a  breach  of  contract, 
the  plaintiff  is  not  always  entitled  to  recover  the  full  amount 
of  the  damage  actually  sustained;  prima  facie,  the  damages 
which  he  is  entitled  to  recover  would  be  the  difference  in  the 
value  of  the  goods  at  the  place  of  destination  at  the  time  they 
ought  to  have  been  delivered  and  their  value  at  the  time  when 
they  are  in  fact  delivered.  Horn  v.  Midland  Railway  Co., 
L.  R.  8  C.  P.  131  ;  Cutting  v.  Grand  Trunk  Railway  Co.,  13 
Allen,  381.  Any  loss  above  this  difference  sustained  by  the 
plaintiff,  not  arising  directly  from  the  dela}*,  but  collaterally 
by  reason  of  special  circumstances,  can  be  recovered  only  on 
the  ground  that  these  special  circumstances,  being  in  view  of 
both  parties  to  the  contract,  constituted  its  basis.  Simpson 
v.  London  &  Northwestern  Railway  Co.,  1  Q.  B.  D.  274.  So 
the  loss  of  a  market  may  be  made  an  element  of  damages 
against  a  carrier  for  delay  in  delivery,  where  it  was  under 
stood,  either  expressly  or  from  the  circumstances  of  the  case, 
that  the  object  of  delivery  was  to  get  the  benefit  of  the  market. 
Pickford  v.  Grand  Junction  Railway  Co.,  12  M.  &  W.  766. 
In  Wilson  v.  Lancashire  &  Yorkshire  Railway  Co.,  9  C.  B. 
N.  s.  632,  the  plaintiff  was  held  entitled  to  recover  for  the 
deterioration  in  the  marketable  value  of  the  cloth  by  reason 


WESTERN  UNION  TELEGRAPH  CO.  v.  HALL.        261 

of  delay  in  the  delivery,  whereby  the  season  for  manufacturing 
it  into  caps,  for  which  it  was  intended,  was  lost. 

The  same  rule,  by  analogy,  has  been  applied  in  actions 
against  telegraph  companies  for  delay  in  the  delivery  of 
messages,  whereby  there  has  been  a  loss  of  a  bargain  or  a 
market.  Such  was  the  case  of  United  States  Telegraph  Co. 
v.  Wenger,  55  Penn.  St.  262.  There  the  message  ordered  a 
purchase  of  stock,  which  advanced  in  price  between  the  time 
the  message  should  have  arrived  and  the  time  when  it  was 
purchased  under  another  order,  and  the  advance  was  held  to 
be  the  measure  of  damages.  There  was  an  actual  loss,  because 
there  was  an  actual  purchase  at  a  higher  price  than  the  party 
would  have  been  compelled  to  pay  if  the  message  had  been 
promptly  delivered,  and  the  circumstances  were  such  as  to 
constitute  notice  to  the  company  of  the  necessity  for  prompt 
delivery.  The  rule  was  similarly  applied  in  Squire  v.  Western 
Union  Telegraph  Co.,  98  Mass.  232.  There  the  defendant 
negligently  delayed  the  delivery  of  a  message  accepting  an 
offer  to  sell  certain  goods  at  a  certain  place  for  a  certain 
price,  whereby  the  plaintiff  lost  the  bargain,  which  would  have 
been  closed  by  a  prompt  delivery  of  the  message.  It  was 
held  that  the  plaintiff  was  entitled  to  recover,  as  compensa- 
tion for  his  loss,  the  amount  of  the  difference  between  the 
price  which  he  agreed  to  pay  for  the  merchandise  by  the  mes- 
sage, which  if  it  had  been  duly  delivered  would  have  closed 
the  contract,  and  the  sum  which  he  would  have  been  com- 
pelled to  pay  at  the  same  place  in  order,  by  the  use  of  due 
diligence,  to  have  purchased  a  like  quality  and  quantity  of  the 
same  species  of  merchandise.  There  the  direct  consequence 
and  result  of  the  delay  in  the  transmission  of  the  message 
was  the  loss  of  a  contract  which,  if  the  message  had  been 
duly  delivered,  would  by  that  act  have  been  completed.  The 
loss  of  the  contract  was,  therefore,  the  direct  result  of  the  de- 
fendant's negligence,  and  the  value  of  that  contract  consisted 
in  the  difference  between  the  contract  price  and  the  market 
price  of  its  subject  matter  at  the  time  and  place  when  and 
where  it  would  have  been  made.  The  case  of  True  v.  Inter- 
national Telegraph  Co.,  60  Maine,  9,  cannot  be  distinguished 


262  CASES  ON  DAMAGES. 

in  its  circumstances  from  the  case  in  98  Mass.  232,  and  was 
governed  in  its  decision  by  the  same  rule.  The  cases  of  Man- 
ville  v.  Telegraph  Co.,  37  Iowa,  214,  220,  and  of  Thompson 
v.  Telegraph  Co.,  64  Wisconsin,  531,  were  instances  of  the 
application  of  the  same  rule  to  similar  circumstances,  the 
difference  being  merely  that  in  these  the  damage  consisted  in 
the  loss  of  a  sale  instead  of  a  purchase  of  property,  which  was 
prevented  by  the  negligence  of  the  defendant  in  the  delivery 
of  the  messages.  In  these  cases  the  plaintiffs  were  held  to  be 
entitled  to  recover  the  losses  in  the  market  value  of  the 
property  occasioned,  which  occurred  during  the  delay. 

Of  course,  where  the  negligence  of  the  telegraph  company 
consists,  not  in  delaying  the  transmission  of  the  message,  but 
in  transmitting  a  message  erroneously,  so  as  to  mislead  the 
party  to  whom  it  is  addressed,  and  on  the  faith  of  which  he 
acts  in  the  purchase  or  sale  of  property,  the  actual  loss  based 
upon  changes  in  market  value  is  clearly  within  the  rule  for 
estimating  damages.  Of  this  class  examples  are  to  be  found 
in  the  cases  of  Turner  v.  Hawkeye  Telegraph  Co.,  41  Iowa, 
458,  and  Rittenhouse  v.  Independent  Line  of  Telegraph,  44 
N.  Y.  263  ;  but  these  have  no  application  to  the  circumstances 
of  the  present  case.  Here  the  plaintiff  did  not  purchase  the 
oil  ordered  after  the  date  when  the  message  should  have  been 
delivered,  and  therefore  was  not  required  to  pay,  and  did  not 
pa}',  any  advance  upon  the  market  price  prevailing  at  the  date 
of  the  order ;  neither  does  it  appear  that  it  was  the  purpose 
or  intention  of  the  sender  of  the  message  to  purchase  the  oil 
in  the  expectation  of  profits  to  be  derived  from  an  immediate 
resale.  If  the  order  had  been  promptly  delivered  on  the  day 
it  was  sent,  and  had  been  executed  on  that  day,  it  is  not 
found  that  he  would  have  resold  the  next  day  at  the  advance, 
nor  that  he  could  have  resold  at  a  profit  at  any  subsequent 
day.  The  only  damage,  therefore,  for  which  he  is  entitled  to 
recover  is  the  cost  of  transmitting  the  delayed  message. 

TJie  judgment  is  accordingly  reversed,  and  the  cause  re- 
manded, with  directions  to  enter  a  judgment  for  the 
plaintiff  for  that  sum  merely. 


WRIGHT  v.  MULVANEY.  263 

WRIGHT  v.   MULVANEY. 

Wisconsin,  1890.     78  Wis.  89. 

In  the  year  1888,  the  plaintiffs  were  engaged  in  the  business 
of  fishermen,  in  the  waters  of  Green  Ba}',  and  had  what  is 
called  a  pound  or  pot  net  set  near  the  direct  route  from  the 
mouth  of  Oconto  River  to  Peshtigo  Harbor.  The  defendant, 
in  August,  1888,  left  the  mouth  of  Oconto  River  with  his 
steam-tug,  and  ran  through  plaintiff's  net  a  few  rods  from 
the  pot,  and  injured  the  same.  This  action  was  brought  to 
recover  damages  for  such  injuries.1 

Lyon,  J.  There  is,  included  in  the  judgment,  $200  for 
damages  to  the  plaintiffs'  business  resulting  from  the  injury 
to  their  net,  —  that  is  to  say,  for  loss  of  the  profits  of  their 
business  during  the  time  necessarily  required  to  restore  the  net. 
The  net  was  never  restored,  and  the  plaintiffs'  fishing  in  that 
vicinity  for  the  remainder  of  the  season  was  all  done  with 
another  net  located  about  one  half  mile  south  of  the  injured 
net.  The  testimony  tends  to  show  that  the  plaintiffs  lifted 
the  pot  of  their  net  and  took  the  fish  therefrom  about  every 
alternate  day  before  the  injury  ;  that  the  profits  of  each  lift 
were  from  $40  to  $50  ;  and  that  it  would  have  required  about 
ten  daj's  to  restore  the  injured  net,  had  it  been  restored. 
There  was  no  other  testimony  introduced  bearing  upon  the 
question  of  profits.  Hence  the  jury  necessarily  assessed  the 
damages  to  plaintiffs'  business  on  the  basis  of  four  or  five  lifts 
of  fish,  at  a  profit  of  from  $40  to  $50  each. 

There  was  no  testimony  as  to  whether  the  conditions  of 
successful  fishing  remained  for  ten  days  after  the  injury  as 
favorable  as  they  were  immediately  before  the  same,  —  none 
to  show  that  the  weather  continued  favorable  during  the  ten 
days  ;  that  storms  did  not  intervene  to  interrupt  the  business  ; 
that  the  fish  continued  to  run  over  the  same  ground  in  equal 

1  The  statement  of  facts  has  been  abridged,  and  part  of  the  opinion 
omitted. 


264  CASES  ON  DAMAGES. 

abundance  ;  that  other  fishermen  operating  in  the  vicinity 
were  equally  as  successful  in  their  business  after  as  before 
the  injur}* ;  nor  that  the  market  price  of  fish  remained  as  high. 
Without  any  testimony  concerning  these  essential  conditions, 
the  jury  must  have  made  their  assessment  of  damages  to 
plaintiffs'  business  largely  upon  mere  conjectures.  They 
must  have  assumed  without  proof  that  a  business  proverbially 
uncertain  in  results,  depending  for  its  success  upon  numerous 
conditions  which  the  persons  engaged  therein  cannot  control 
or  influence,  and  the  presence  or  absence  of  which  at  a  future 
time  cannot  be  foretold  with  any  degree  of  accuracj',  would 
have  continued  after  the  net  was  injured  to  be  just  as  profita- 
ble as  it  was  before  the  injury.  Such  an  assumption  under 
such  circumstances  is  unwarranted  in  the  law,  and  probably 
we  should  be  compelled  to  reverse  this  judgment  for  want  of 
sufficient  evidence  to  support  the  assessment  of  damages  for 
profits,  even  though  it  should  be  held  that  under  proper  proofs 
the  plaintiffs  might  recover  prospective  profits. 

But  we  are  of  the  opinion  that  prospective  profits  cannot 
properly  be  awarded  as  damages  in  this  case.  The  reason 
therefor  has  already  been  suggested,  which  is  that  under  any 
state  of  the  testimony,  in  view  of  the  character  and  conditions 
of  the  business,  the  jury  could  have  no  sufficient  basis  for 
ascertaining  such  prospective  profits.  At  best,  the  assess- 
ment thereof  must  necessarily  rest  largely  upon  conjecture. 
This  feature  of  the  case  brings  it  within  the  rule  of  Bierbach  v. 
Good3'ear  Rubber  Co.,  54  Wis.  208,  and  Anderson  v.  Sloane, 
72  Wis.  566,  and  the  cases  cited  in  the  opinions  therein.  In 
the  latter  case,  Mr.  Justice  Taylor  has  pointed  out  the  dis- 
tinction between  that  case  and  those  cases  in  this  court  in 
which  prospective  profits  have  been  allowed  as  damages. 
It  is  unnecessary  to  repeat  the  discussion  here.  It  is  some- 
times quite  difficult  to  determine  to  which  of  the  above  classes 
a  given  case  belongs,  and  such  determination  must  be  gov- 
erned largely  by  the  special  circumstances  of  each  particular 
case. 

The  jury  assessed  the  damages  to  the  net  at  $110.     This 


RICHMOND  &  DANVILLE   RAILROAD   v.  ELLIOTT.     265 

includes  not  only  the  cost  of  repairing  it,  but  also  the  value 
of  the  services  of  the  plaintiffs  and  their  servants  in  reset- 
ting it.  We  conclude  that  the  plaintiffs  are  entitled  to  recover 
no  other  damages,  except  the  value  of  the  use  of  the  net 
during  the  time  they  were  necessarily  deprived  of  its  use, 
which  was  about  ten  days. 

By  the  Court.  —  The  judgment  of  the  Circuit  Court  is  re- 
versed, and  the  cause  will  be  remanded  with  directions  to 
award  a  new  trial,  or,  at  the  option  of  the  plaintiffs,  to  give 
judgment  for  them  for  $110  and  interest  thereon  from  the 
date  of  the  verdict,  besides  costs. 


RICHMOND    &  DANVILLE   RAILROAD  v.  ELLIOTT. 

United  States  Supreme  Court,  1893.     149  U.  S.  266. 

Brewer,  J.1  The  first  question  to  which  our  attention  is 
directed  arises  on  the  admission  of  testimony  in  respect  to 
the  probability  of  plaintiff's  promotion  in  the  service  of  his 
emploj'er,  and  a  consequent  increase  of  wages.  It  appears 
that  he  was  working  in  the  capacity  of  coupler  and  switch- 
man for  the  Central  Company,  and  had  been  so  working  for 
between  four  and  five  3-ears ;  that  he  was  27  years  of  age,  in 
good  health,  and  receiving  $1.50  per  day.  He  was  asked 
this  question  :  "  What  were  your  prospects  of  advancement, 
if  any,  in  your  employment  on  the  railroad  and  of  obtaining 
higher  wages?  "  In  response  to  that,  and  subsequent  ques- 
tions, he  stated  that  he  thought  that  by  staving  with  the 
company  he  would  be  promoted  ;  that  in  the  absence  of  the 
yard-master  he  had  sometimes  discharged  his  duties,  and  also 
in  like  manner  temporarily  filled  the  place  of  other  emplo\Te's 
of  the  company  of  a  higher  grade  of  service  than  his  own ; 
that  there  was  a  "system  by  which  you  go  in  there  as  coupler 
or  train-hand  or  in  the  yard,  and  if  a  man  falls  out  you  stand 
a  chance  of  taking  his  place ;  "  and  that  the  average  yard' 

1  Part  of  the  opinion  is  omitted. 


266  CASES  ON  DAMAGES. 

conductor  obtained  a  salary  of  from    sixty  to  seventy-five 
dollars  a  month. 

"We  think  there  was  error  in  the  admission  of  this  testi- 
mony. It  did  not  appear  that  there  was  any  rule  on  the  part 
of  the  Central  Company  for  an  increase  of  salary  after  a  cer- 
tain length  of  time,  or  that  promotion  should  follow  whenever 
a  vacancy  occurred  in  a  higher  grade  of  service.  The  most 
that  was  claimed  was  that  when  a  vacancy  took  place  a  sub- 
ordinate who  had  been  faithful  in  his  employment,  and  had 
served  a  long  while,  had  a  chance  of  receiving  preferment. 
But  that  is  altogether  too  problematical  and  uncertain  to  be 
presented  to  a  jury  in  connection  with  proof  of  the  wages 
paid  to  those  in  such  superior  employment.  Promotion  was 
purely  a  matter  of  speculation,  depending  not  simply  upon 
the  occurrence  of  a  vacancy,  but  upon  the  judgment  or  even 
whim  of  those  in  control.  Of  course,  there  are  possibilities 
and  probabilities  before  every  person,  particularly  a  young 
man,  and  a  jury  in  estimating  the  damages  sustained  will 
doubtless  always  give  weight  to  those  general  probabilities, 
as  well  as  those  springing  from  an}'  peculiar  capacities  or 
faculties.  But  that  is  a  different  matter  from  proving  to  the 
jury  the  wages  which  some  superior  officer  receives,  and  then 
exaggerating  in  the  minds  of  the  jury  the  amount  of  the 
damage  which  has  been  sustained,  by  evidence  tending  to 
show  that  there  is  a  chance  of  plaintiff  being  promoted  at 
some  time  to  such  higher  office.  It  is  enough  to  prove  what 
the  plaintiff  has  been  in  fact  deprived  of;  to  show  his  physi- 
cal health  and  strength  before  the  injury,  his  condition  since, 
the  business  he  was  doing,  Wade  v.  Leroy,  20  How.  34  ; 
Nebraska  City  v.  Campbell,  2  Black,  590;  Vicksburg  & 
Meridian  Railroad  v.  Putnam,  118  U.  S.  545,  554  ;  the  wages 
he  was  receiving,  and  perhaps  the  increase  which  he  would 
receive  hy  any  fixed  rule  of  promotion.  Beyond  that,  it  is 
not  right  to  go  and  introduce  testimony  which  simply  opens 
the  door  to  a  speculation  of  possibilities. 


CHAPTER  IX. 

COMPENSATION. 


Section  1. — Entire  Damages. 

FETTER   v.  BEAL. 

King's  Bench,  1698,  1701.     1  Ld.  Raym.  339,  692. 

Special  action  of  trespass  and  battery  for  a  battery  com- 
mitted by  the  defendant  upon  the  plaintiff,  and  breaking  his 
skull.  The  plaintiff  declares  of  the  battery,  &c,  and  that  he 
brought  an  action  for  it  against  the  defendant,  and  recovered 
£11  and  no  more;  and  that  after  that  recovery  part  of  his 
skull  by  reason  of  the  said  battery  came  out  of  his  head,  per 
quod,  &c.  The  defendant  pleaded  the  said  recovery  in  bar. 
Upon  which  the  plaintiff  demurred.  And  Shower  for  the 
plaintiff  argued,  that  this  action  differed  from  the  nature  of 
the  former,  and  therefore  would  well  lie,  notwithstanding  the 
recovery  in  the  other ;  because  the  recovery  in  the  former 
action  was  only  for  the  bruise  and  battery,  but  hero  there  is  a 
maihem  b}-  the  loss  of  the  skull.  As  if  a  man  brings  an  action 
against  another  for  taking  and  detaining  of  goods  for  two 
months,  and  afterwards  he  brings  another  action  for  taking 
and  detaining  for  two  years,  the  recovery  in  the  former  action 
is  not  pleadable  in  bar  of  the  second.  If  dcatli  ensues  upon 
the  battery  of  a  servant,  this  will  take  away  the  action  per 
quod  servitiurn  amisit.  And  then  if  a  consequence  will  take 
away  an  action,  for  the  same  reason  it  will  give  an  action. 
If  a  man  brings  an  action  for  uncovering  his  house,  by  which 
his  goods  were  spoiled,  and  afterwards  by  reason  of  the  said 


268  CASES  ON  DAMAGES. 

uncovering  new  goods  are  spoiled,  he  shall  have  a  new  action. 
Quod  Holt  negavit.  And  per  totam  curiam,  the  jury  in  the 
former  action  considered  the  nature  of  the  wound,  and  gave 
damages  for  all  the  damages  that  it  had  done  to  the  plain- 
tiff; and  therefore  a  recovery  in  the  said  action  is  good  here. 
And  it  is  the  plaintiff's  fault,  for  if  he  had  not  been  so 
hasty,  he  might  have  been  satisfied  for  this  loss  of  the 
skull  also.  Judgment  for  the  defendant,  nisi,  &c. 


Sir  Bartholomew  Shower  moved  in  this  case  for  judgment 
for  the  plaintiff,  because  this  special  subsequent  damage  is  a 
sufficient  foundation  for  an  action,  and  that  for  great  reason, 
because  the  jury  could  not  have  consideration  of  it  in  giving 
damages.  And  he  compared  it  to  the  case  of  a  nuisance,  that  a 
man  might  have  an  action  for  every  new  dropping  of  the  water 
from  the  eaves  of  the  house.  2.  There  is  a  maim  laid  here,  and 
therefore  the  prior  recovery  in  the  action  of  assault  cannot  be  a 
bar.  Mr.  Montague,  of  the  same  side,  said,  that  if  A.  breaks  a 
sea  wall,  and  the  owner  of  the  land  recovers  damages  for  it  in  an 
action,  and  erects  a  new  wall,  and  before  it  is  dry  and  settled 
the  sea  throws  it  down  again,  and  overflows  the  land,  &c,  for 
this  special  subsequent  damage  the  owner  may  have  a  new 
action. 

Holt,  C.J.  This  is  a  new  case  to  which  there  is  no 
parallel  in  the  books.  Every  one  shall  recover  damages  in 
proportion  to  his  prejudice  which  he  hath  sustained  ;  and  if 
this  matter  had  been  given  in  evidence,  as  that  which  in 
probability  might  have  been  the  consequence  of  the  battery, 
the  plaintiff  would  have  recovered  damages  for  it.  The  in- 
jury, which  is  the  foundation  of  the  action,  is  the  batteiy,  and 
the  greatness  or  consequence  of  that  is  only  in  aggravation  of 
damages.  In  some  cases  the  damage  is  the  foundation  of  the 
action,  as  in  the  action  by  the  master  for  batter}'  of  his  ser- 
vant, per  quod  servitium  amisit,  but  here  the  batteiy  only  is 
the  foundation  of  the  action,  and  this  damage,  which  might 
probably  ensue,  might  and  ought  to  have  been  given  in  evi- 


DARLEY  MAIN  COLLIERY  CO.  v.   MITCHELL.       269 

dence,  and  must  be  intended  to  have  been  given  in  evidence 
in  the  former  action,  and  that  the  jury  gave  damages  for  all 
the  hurt  that  he  suffered  ;  for  if  the  nature  of  the  battery  was 
such  as  probably  to  produce  this  effect,  the  jury  might  give 
damages  for  it  before  it  happened.  As  to  the  case  of  the  sea 
wall,  the  plaintiff  would  recover  damages  enough  in  the  first 
action,  to  rebuild  it ;  and  if  he  rebuilds  it  ill,  the  fault  is  his 
own.  And  as  to  the  nuisance,  every  new  dropping  is  a  new 
nuisance.  As  to  the  maihem,  that  is  nothing  ;  for  a  recovery 
in  battery,  &c,  is  a  bar  in  appeal  of  maihem,  4  Co.  43  a, 
because  in  battery  the  plaintiff  may  give  a  maihem  in  evi- 
dence, and  recover  damages  for  it.  And  Holt,  C.J.,  said, 
that  the  original  cause  was  tried  before  him  eight  years  ago, 
and  the  plaintiff  and  defendant  appeared  to  be  both  in  drink, 
and  the  jury  did  not  well  know  which  of  them  was  in  fault  and 
therefore  they  gave  the  less  damages.  The  plaintiff  could  not 
obtain  judgment,  the  court  inclining  strongly  against  him. 


DARLEY  MAIN  COLLIERY  CO.  v.  MITCHELL. 

House  of  Lords,  1886.     11  App.  Cas.  127. 

Lord  Halsburt,  L.C.1  My  Lords,  in  this  case  the  plain- 
tiff, the  owner  of  land  upon  the  surface,  has  sued  the 
lessee  of  certain  seams  of  coal  below  and  adjacent  to  the 
plaintiff's  land  for  having  disturbed  the  plaintiff  in  the  enjoy- 
ment of  his  property  by  causing  it  to  subside.  The  defend- 
ants before  and  up  to  the  year  1868  have  worked,  that  is  to 
say,  excavated,  the  seams  of  coal,  of  which  they  were  lessees. 
Their  excavation  caused  a  subsidence  of  the  ground,  for  which 
they  acknowledged  their  liability  and  made  satisfaction.  There 
were  other  subsidences  after  this,  and  as  the  case  originally 
came  before  your  Lordships,  it  was  matter  of  inference  only 
whether  these  subsidences  were  or  were  not  in  some  way  con- 
nected with,  if  not  forming  part  of,  the  original  subsidence. 

1  Lords  Bramwell  and  FitzGerald  delivered  concurring  opinions, 
and  Lord  Blackburn  a  dissenting  opinion. 


270  CASES  ON  DAMAGES. 

The  parties  have  now,  by  an  admission  at  your  Lordships' 
bar,  placed  the  matter  beyond  doubt. 

It  has  been  agreed  that  the  owner  of  the  adjoining  land 
worked  out  his  coal  subsequently  to  1868.  That  if  he  had 
not  done  so  there  would  have  been  no  further  subsidence,  and 
if  the  defendants'  coal  had  not  been  taken  out,  or  if  sufficient 
support  had  been  left,  the  working  of  the  adjoining  owner 
would  have  done  no  harm.  Under  these  circumstances,  the 
question  is  whether  the  satisfaction  for  the  past  subsidence 
must  be  taken  to  have  been  equivalent  to  a  satisfaction  for 
all  succeeding  subsidences.  No  one  will  think  of  disputing 
the  proposition  that  for  one  cause  of  action  3011  must  recover 
all  damages  incident  to  it  by  law  once  and  forever.  A  house 
that  has  received  a  shock  may  not  at  once  show  all  the  dam- 
age done  to  it,  but  it  is  damaged  none  the  less  then  to  the 
extent  that  it  is  damaged,  and  the  fact  that  the  damage  only 
manifests  itself  later  on  bjT  stages  does  not  alter  the  fact  that 
the  damage  is  there  ;  and  so  of  the  more  complex  mechanism 
of  the  human  frame,  the  damage  is  done  in  a  railwa}'  accident, 
the  whole  machinery  is  injured,  though  it  may  escape  the  eje 
or  even  the  consciousness  of  the  sufferer  at  the  time  ;  the  later 
stages  of  suffering  are  but  the  manifestations  of  the  original 
damage  done,  and  consequent  upon  the  injury  originally 
sustained. 

But  the  words  "cause  of  action  "  are  somewhat  ambiguously 
used  in  reasoning  upon  this  subject ;  what  the  plaintiff  has  a 
right  to  complain  of  in  a  Court  of  Law  in  this  case  is  the  dam- 
age to  his  land,  and  by  the  damage  I  mean  the  damage  which 
had  in  fact  occurred,  and  if  this  is  all  that  a  plaintiff  can  com- 
plain of,  I  do  not  see  why  he  may  not  recover  toties  quoties 
fresh  damage  is  inflicted. 

Since  the  decision  of  this  House  in  Bonomi  v.  Backhouse, 
9  H.  L.  C.  503,  it  is  clear  that  no  action  would  lie  for  the 
excavation.  It  is  not,  therefore,  a  cause  of  action  ;  that  case 
established  that  it  is  the  damage  and  not  the  excavation  which 
is  the  cause  of  action.  I  cannot  understand  why  every 
new  subsidence,  although  pi'oceeding  from  the  same  original 


DARLEY  MAIN  COLLIERY  CO.   v.  MITCHELL.       271 

act  or  omission  of  the  defendants,  is  not  a  new  cause  of  action 
for  which  damages  ma}*  be  recovered.  I  cannot  concur 
in  the  view  that  there  is  a  breach  of  duty  in  the  original 
excavation. 

In  Rowbotham  v.  Wilson,  8  E.  &  B.  123,  157,  Cresswell,  J., 
said  that  the  owner  of  the  mines  might  have  removed  every 
atom  of  the  minerals  without  being  liable  to  an  action,  if  the 
soil  above  had  not  fallen  ;  and  what  is  true  of  the  first  sub- 
sidence seems  to  me  to  be  necessarily  true  of  every  subse- 
quent subsidence.  The  defendant  has  originally  created  a 
state  of  things  which  renders  him  responsible  if  damage  ac- 
crues ;  if  by  the  hypothesis  the  cause  of  action  is  the  damage 
resulting  from  the  defendant's  act,  or  an  omission  to  alter  the 
state  of  things  he  has  created,  why  may  not  a  fresh  action 
be  brought?  A  man  keeps  a  ferocious  dog  which  bites  his 
neighbor ;  can  it  be  contended  that  when  the  bitten  man 
brings  his  action  he  must  assess  damages  for  all  possibility  of 
future  bites?  A  man  stores  water  artificially,  as  in  Fletcher  v. 
Rvlands,  Law  Rep.  3  H.  L.  330 ;  the  water  escapes  and 
sweeps  away  the  plaintiffs  house  ;  he  rebuilds  it,  and  the  arti- 
ficial reservoir  continues  to  leak  and  sweeps  it  away  again. 
Cannot  the  plaintiff  recover  for  the  second  house,  or  must  he 
have  assessed  in  his  first  damages  the  possibility  of  any  future 
invasion  of  water  flowing  from  the  same  reservoir? 

With  respect  to  the  authorities,  the  case  of  Nicklin  v.  Wil- 
liams, 10  Ex.  259,  was  urged  by  the  Attorney-General  as  an 
authority  upon  the  question  now  before  }'our  Lordships,  by 
reason  of  some  words  attributed  to  Lord  Westbuiy  in  Bonomi 
v.  Backhouse.  If  Lord  Westbuiy  really  did  use  the  words  at- 
tributed to  him,  it  is,  I  think,  open  to  doubt  in  what  sense  they 
are  to  be  understood.  Baron  Parke  in  that  case  delivered  the 
judgment  against  the  plaintiffs  recovering  any  subsequently 
accruing  damage,  because,  he  said,  the  cause  of  action  was 
the  original  injury  to  the  right  by  withdrawing  support.  That 
principle  is  admittedly  wrong,  and  was  expressly  held  to  be 
wrong  in  Bonomi  v.  Backhouse,  since  if  that  had  been  law 
there  could  have  been  no  answer  to  the  plea  of  the  Statute  of 


272  CASES  ON  DAMAGES. 

Limitations  in  that  case.  It  is  difficult  to  follow  the  Master 
of  the  Rolls  when  he  says  it  was  not  necessary  to  overrule 
Nicklin  v.  Williams  by  that  decision.  It  seems  to  me  to  have 
been  the  whole  point  decided  in  Nicklin  v.  Williams,  and  how 
that  case  so  decided  can  be  an  authority  for  anything  I  am  at 
a  loss  to  understand. 

I  think  the  decision  of  this  case  must  depend  as  matter  of 
logic  upon  the  decision  of  your  Lordships'  House  in  Bonomi  v. 
Backhouse,  and  I  do  not  know  that  it  is  a  very  legitimate  in- 
quiry, when  a  principle  has  been  laid  down  by  a  tribunal  from 
which  there  is  no  appeal,  and  which  is  bound  by  its  own 
decisions,  whether  that  principle  is  upon  the  whole  advanta- 
geous or  convenient ;  but  if  such  considerations  were  per- 
missible, I  think  Cockburn,  C.J.,  in  his  judgment  in  Lamb  y. 
Walker,  3  Q  B.  D.  389,  establishes  the  balance  of  convenience 
to  be  on  the  side  of  the  law,  as  established  by  Bonomi  v.  Back- 
house. I  cannot  logically  distinguish  between  a  first  and  a 
second,  or  a  third,  or  more  subsidences,  and  after  Bonomi  v. 
Backhouse  it  is  impossible  to  say  that  it  was  wrong  in  any 
sense  for  the  defendant  to  remove  the  coal.  Cresswell,  J., 
has  said,  and  I  think  rightly,  that  he  might  remove  every  atom 
of  the  mineral. 

The  wrong  consists,  and,  as  it  appears  to  me,  wholly  con- 
sists, in  causing  another  man  damage,  and  I  think  he  may 
recover  for  that  damage  as  and  when  it  occurs. 

For  these  reasons,  I  think  that  the  judgment  appealed  from 
should  be  affirmed  with  costs.  Appeal  dismissed. 

STODGHILL  v.  CHICAGO,  BURLINGTON,  &  QUINCY 
RAILROAD. 

Iowa,  1880.     53  la.  341. 

Cfiristopher  Stodghill  was  the  owner  of  a  farm  of  some 
four  hundred  and  eighty  acres  in  Wapello  County.  Part  of 
said  farm  consisted  of  a  tract  of  twentj'-nine  acres  of  creek 
or  pasture  land.  The  defendant's  right  of  way  for  its  rail- 
road was  located  along  the  north  line  of  said  tract.    The  nat- 


STODGHILL  v.   CHICAGO,   B.,  &  Q.  RAILROAD.      273 

ural  channel  of  North  Avery  Creek  ran  across  the  right  of 
way  upon  said  tract,  meandered  through  it,  and  recrossed  the 
north  line  of  the  land,  and  the  right  of  way.  When  the  rail- 
road was  constructed,  bridges  were  built  across  the  creek 
which  spanned  the  channel,  and  did  not  obstruct  the  passage 
of  the  water  in  the  stream,  nor  divert  it  from  where  it  was 
wont  to  flow.  In  1874  the  defendants  cut  a  channel  on  the 
north  side  of  their  right  of  way,  and  filled  in  the  bridge  where 
the  stream  entered  plaintiff's  land,  with  earth,  which  diverted 
the  stream  into  the  new  channel  entirely,  except  as  the  water 
backed  through  a  culvert  at  the  point  where  the  water 
recrosses  the  right  of  way ;  the  said  bridge  at  the  last-named 
point  having  been  previously  removed,  a  culvert  there  con- 
structed, and  the  stream  filled  in  at  this  point,  except  the 
culvert  aforesaid. 

Christopher  Stodghill  commenced  an  action  against  the  de- 
fendant for  damages  to  his  land  by  reason  of  the  diversion  of 
the  stream.  He  recovered  a  verdict  and  judgment  for  one 
dollar  and  costs.  The  case  was  affirmed  upon  appeal  to  this 
court.     See  Stodghill  v.  C.  B.  &  Q.  R.  Co.,  43  Iowa,  26. 

Said  Stodghill  died  in  the  year  1876,  and  by  his  last  will 
and  testament,  which  was  duly  admitted  to  probate,  he  de- 
vised the  said  twent3'-nine  acres  with  other  of  his  lands  to 
the  plaintiff.  This  action  was  commenced  in  February,  1877, 
to  recover  damages  for  continuing  to  divert  the  water  from 
the  natural  channel  of  said  creek,  and  for  a  judgment  direct- 
ing the  abatement  and  removal  of  the  embankments  in  the 
original  channel. 

There  was  a  trial  by  the  court  without  the  intervention  of 
a  jury,  and  a  judgment  was  rendered  for  plaintiffs  for  one 
dollar  actual  damages,  and  seventy-five  dollars  exemplary 
damages,  and  an  order  was  made  requiring  the  defendant  to 
abate  and  remove  said  obstructions  from  the  natural  channel 
of  the  creek.     Defendant  appeals. 

Rothrock,  J.  When  the  earth  was  deposited  in  the  chan- 
nel of  the  creek  and  raised  to  a  sufficient  height  to  cover 
over  the  bridge  and  make  a  solid  embankment  upon  which 

18 


274  CASES  ON  DAMAGES. 

to  lay  the  railroad  track,  the  water  in  the  creek  was  at  once 
turned  into  the  new  channel.  The  principal  question  in 
the  case  is  whether  the  judgment  for  damages  in  favor  of 
Christopher  Stodghill  was  a  full  adjudication  for  all  injuries 
to  the  land,  not  only  up  to  the  commencement  of  that  suit, 
but  for  all  that  might  thereafter  arise. 

In  Powers  v.  Council  Bluffs,  45  Iowa,  652,  the  question 
being  as  to  what  is  a  permanent  nuisance,  it  was  held  that 
where  it  is  of  such  character  that  its  continuance  is  neces- 
sarily an  injury,  and  that  when  it  is  of  a  permanent  character 
that  will  continue  without  change  from  any  cause  but  human 
labor,  the  damage  is  original,  and  may  be  at  once  fully  esti- 
mated and  compensated  ;  that  successive  actions  will  not  lie, 
and  that  the  Statute  of  Limitations  commences  to  run  from 
the  time  of  the  commencement  of  the  injury  to  the  property. 
That  was  a  case  where  the  plaintiff  sought  to  recover  dam- 
ages against  the  city  for  diverting  the  natural  channel  of  a 
stream,  called  Indian  Creek,  by  excavating  a  ditch  in  a  street 
in  such  a  manner  that  it  widened  and  deepened  by  the  action 
of  the  water,  so  as  to  injure  plaintiff's  lot  abutting  upon  said 
street.  The  same  rule  was  recognized  in  Town  of  Troy  v. 
Cheshire  Railroad  Co.,  3  Foster  (N.  H.),  83.  In  that  case 
the  defendant  constructed  the  embankment  of  its  railroad 
upon  a  part  of  a  highway.  The  action  was  by  the  town  to 
recover  damages.  The  plaintiff  claimed  that  it  was  entitled 
to  recover  for  the  damages  for  the  permanent  injury.  The 
court  said :  "  The  railroad  is  in  its  nature,  design,  and  use,  a 
permanent  structure,  which  cannot  be  assumed  to  be  liable  to 
change  ;  the  appropriation  of  the  roadway  and  materials  to 
the  use  of  the  railroad  is,  therefore,  a  permanent  diversion  of 
that  property  to  that  new  use,  and  a  permanent  dispossession 
of  the  town  of  it  as  the  place  on  which  to  maintain  a  high- 
way. The  injury  done  to  the  town  is,  then,  a  permanent 
injury,  at  once  done  by  the  construction  of  the  railroad,  which 
is  dependent  upon  no  contingency  of  which  the  law  can  take 
notice,  and  for  the  injury  thus  done  to  them  they  are  entitled 
to  recover  at  once  their  reasonable  damages." 


STODGHILL  v.   CHICAGO,  B.,  &  Q.  RAILROAD.       275 

The  case  at  bar  is  a  much  stronger  illustration  of  what  is  a 
permanent  nuisance  or  trespass  for  which  damages,  past, 
present,  and  prospective,  may  be  recovered,  than  Powers  v. 
Council  Bluffs.  In  this  case  the  damages  to  the  whole  extent 
were  at  once  apparent.  The  wrater  was  diverted  from  the 
natural  channel  as  soon  as  the  embankment  was  raised  to  a 
sufficient  height  to  turn  the  current  into  the  new  channel. 
The  injury  to  the  land  was  then  as  susceptible  of  estimation 
as  it  ever  afterwards  could  be,  and  without  calculating  any 
future  contingencies.  In  the  other  case,  when  the  water  com- 
menced to  flow  in  the  new  channel  the  plaintiff's  lots  were 
not  injured.  It  required  time  to  wash  away  the  banks  and 
work  backward  before  the  injury  commenced.  It  is  not  neces- 
sary to  dwell  upon  this  question.  The  rule  established  in 
Powers  v.  Council  Bluffs,  supra,  is  decisive  of  this  case.  See, 
also,  Chicago  &  Alton  R.  R.  Co.  v.  Maher,  Supreme  Court 
of  Illinois,  Chicago  Legal  News,  July  5,  1879.  Counsel  for 
appellee  contend  that  the  railroad  embankment  is  not  perma- 
nent because  it  is  liable  to  be  washed  out  by  freshets  in  the 
stream,  and  cannot  stand  without  being  repaired.  There  is 
no  evidence  in  this  record  tending  to  show  that  the  embank- 
ment is  insufficient  to  accomplish  the  purpose  for  which  it 
was  erected  ;  that  is,  to  make  a  solid  railroad  track  and  divert 
the  water  into  the  new  channel.  One  witness  testified  that  it 
is  from  sixteen  to  eighteen  feet  high.  We  will  not  presume 
that  the  defendant  was  guilty  of  such  a  want  of  engineering 
skill  as  not  to  raise  its  embankments  so  that  they  will  not  be 
affected  by  high  water.  It  seems  to  us  that  a  railroad  em- 
bankment, of  proper  width  and  raised  to  the  proper  height, 
is  about  as  permanent  as  anything  that  human  hands  can 
make.  Before  leaving  this  branch  of  the  case,  it  is  proper  to 
say  that  the  acts  complained  of  were  done  within  the  limit 
of  the  defendant's  right  of  way,  and  the  injury,  if  any.  to  the 
plaintiff's  land,  was  consequential.  The  defendant  did  not 
enter  upon  plaintiff's  land  to  take  a  right  of  way  for  its  rail- 
road, and  Christopher  Stodghill  did  not  bring  his  action  to 
recover  upon  that  ground.     As  we  have  a  statute  providing 


276  CASES  ON  DAMAGES. 

for  proceedings  to  condemn  the  land  necessary  to  be  taken 
for  right  of  way  for  railroad  purposes,  it  may  be  that  the 
mode  of  ascertaining  the  damages  prescribed  by  the  statute 
must  be  pursued.  See  Daniels  v.  C.  &  N.  W.  R.  R.  Co.,  35 
Iowa,  129.  That  question,  however,  is  not  in  this  case,  and 
we  only  refer  to  it  lest  we  may  be  misunderstood. 

Christopher  Stodghill,  in  his  petition  in  the  former  action, 
averred  that  the  diversion  of  the  stream  from  its  natural 
course  across  said  land  perpetually  deprived  him  of  the  use 
thereof,  to  his  great  damage  in  the  prosecution  of  his  busi- 
ness, and  in  the  depreciation  in  the  value  of  his  said  farm 
and  pasture  lands,  and  he  claimed  damages  in  the  sum  of 
$499.  The  court  instructed  the  jury  in  that  case  that  they 
were  not  to  consider  the  question  in  regard  to  any  permanent 
damage  to  the  land,  for  the  reason  that  the  plaintiff  had  the 
right  to  institute  other  suits  to  recover  damages  sustained 
after  the  commencement  of  the  action. 

But  the  plaintiff  claimed  damages  generally,  and  by  his 
pleadings  he  and  those  holding  under  him  must  be  bound. 
Indeed,  we  do  not  understand  counsel  for  appellee  to  contend 
otherwise.  The  damages  being  entire  and  susceptible  of  im- 
mediate recovery,  the  plaintiff  could  not  divide  his  claim  and 
maintain  successive  actions.  The  erroneous  instructions  of 
the  court  to  the  jury  did  not  affect  the  question.  It  was  the 
duty  of  the  plaintiff  to  have  excepted  and  appealed.  "An 
adjudication  is  final  and  conclusive,  not  only  as  to  the  matter 
actually  determined,  but  as  to  every  other  matter  which  the 
parties  might  have  litigated  and  have  had  decided,  as  inci- 
dent to  or  essentially  connected  with  the  subject-matter  of 
litigation."  Freeman  on  Judgments,  sec.  249.  And  see 
Dewey  v.  Peck,  33  Iowa,  242  ;  Schmidt  v.  Zahensdorf,  30 
Iowa,  498. 

The  foregoing  considerations  dispose  of  the  case,  and  it 
becomes  unnecessary  to  examine  or  determine  other  questions 
discussed  by  counsel. 

Reversed. 


PARKER  v.   RUSSELL.  277 

PARKER  v.   RUSSELL. 

Massachusetts,  1882.     133  Mass.  74. 

Field,  J.  In  an  action  for  the  breach  of  a  contract  to 
support  the  plaintiff  during  his  life,  if  the  contract  is  regarded 
as  still  subsisting,  the  damages  are  assessed  up  to  the  date  of 
the  writ,  and  not  up  to  the  time  when  the  verdict  is  rendered. 
Fay  v.  Guynon,  131  Mass.  31. 

But  if  the  breach  has  been  such  that  the  plaintiff  has  the 
right  to  treat  the  contract  as  absolutely  and  finally  broken  by 
the  defendant,  and  he  elects  so  to  treat  it,  the  damages  are 
assessed  as  of  a  total  breach  of  an  entire  contract.  Amos  v. 
Oakley,  131  Mass.  413 ;  Schell  v.  Plumb,  55  N.  Y.  592 ; 
Remelee  v.  Hall,  31  Vt.  582 ;  Fales  v.  Hemenway,  64 
Maine,  373 ;  Sutherland  v.  Wyer,  G7  Maine,  G4 ;  Lamo- 
reaux  v.  Rolfe,  36  N.  H.  33  ;  Mullaly  v.  Austin,  97  Mass. 
30  ;  Howard  v.  Daly,  61  N.  Y.  362. 

Such  damages  are  not  special  or  prospective  damages,  but 
are  the  damages  naturally  resulting  from  a  total  breach  of 
the  contract,  and  are  suffered  when  the  contract  is  broken, 
and  are  assessed  as  of  that  time.  From  the  nature  of  the 
contract  the}'  include  damages  for  not  performing  the  con- 
tract in  the  future  as  well  as  in  the  past.  The  value  of  the 
contract  to  the  plaintiff  at  the  time  it  is  broken  may  be  some- 
what indefinite  because  the  duration  of  the  life  of  the  plaintiff 
is  uncertain,  but  uncertainty  in  the  duration  of  a  life  has  not, 
since  the  adoption  of  life  tables,  been  regarded  as  a  reason 
why  full  relief  in  damages  should  not  be  afforded  for  a  failure 
to  perform  a  contract  which  by  its  terms  was  to  continue 
during  life. 

When  the  defendant,  for  example,  absolutely  refuses  to  per- 
form such  a  contract  after  the  time  for  entering  upon  the 
performance  has  begun,  it  would  be  a  great  hardship  to 
compel  the  plaintiff  to  be  ready  at  all  times  during  his  life  to 


278  CASES  ON  DAMAGES. 

be  supported  b}T  the  defendant,  if  the  defendant  should  at  any 
time  change  his  mind ;  and  to  hold  that  he  must  resort  to 
successive  actions  from  time  to  time  to  obtain  his  damages 
piecemeal,  or  else  leave  them  to  be  recovered  as  an  entirety 
by  his  personal  representatives  after  his  death. 

Daniels  v.  Newton,  114  Mass.  530,  decides  that  an  absolute 
refusal  to  perform  a  contract  before  the  performance  is  due 
by  the  terms  of  the  contract  is  not  a  present  breach  of  the 
contract  for  which  any  action  can  be  maintained  ;  but  it  does 
not  decide  that  an  absolute  refusal  to  perform  a  contract 
after  the  time  and  under  the  conditions  in  which  the  plaintiff 
is  entitled  to  require  performance,  is  not  a  breach  of  the 
contract,  even  although  the  contract  is  by  its  terms  to 
continue   in  the  future. 

The  cases  cited  by  the  defendant  are  not  inconsistent  with 
these  views.  In  Pierce  v.  Woodward,  6  Pick.  206,  the 
declaration  was  for  a  breach  of  a  negative  promise,  namely, 
"not  to  set  up  the  business  of  a  grocer"  within  certain 
limits  ;  and  it  was  held  that  the  damages  could  be  assessed 
only  to  the  date  of  the  writ.  The  defendant  might  at  any 
time,  without  the  consent  of  the  plaintiff,  stop  carrying  on 
the  business,  when  the  plaintiff's  damages  would  necessarily 
cease. 

Powers  v.  Ware,  4  Pick.  106,  was  an  action  of  covenant 
broken,  brought  by  the  overseers  of  the  poor,  under  the  St. 
of  1793,  c.  59,  §  5,  for  the  breach  of  a  covenant  to  maintain 
an  apprentice  under  an  indenture  of  apprenticeship.  The 
court  in  the  opinion  speak  of  the  common-law  rule  in  assess- 
ing damages  only  to  the  date  of  the  writ.  But  the  statute 
under  which  the  action  was  brought  prevented  the  overseers 
from  treating  the  contract  as  wholly  at  an  end,  because  it 
gave  the  apprentice  a  right  of  action  when  the  term  is  ex- 
pired, "for  damages  for  the  causes  aforesaid,  other  than 
such,  if  any,  for  which  damages  may  have  been  recovered  as 
aforesaid,"  that  is,  by  the  overseers. 

Hambleton  v.  Veere,  2  Saund.  169,  was  an  action  on  the 
case  for  enticing  away  an  apprentice  ;    and  Ward  v.  Rich, 


PARKER  v.   RUSSELL.  279 

1  Vent.  103,  was  an  action  for  abducting  a  wife  ;  and  neither 
throws  much  light  on  the  rule  of  damages  for  breach  of  a 
contract. 

Horn  v.  Chandler,  1  Mod.  271,  was  covenant  broken  upon 
an  indenture  of  an  infant  apprentice,  who  under  the  custom 
of  London  had  bound  himself  to  serve  the  plaintiff  for  seven 
years ;  the  declaration  alleged  a  loss  of  service  for  the  whole 
term,  a  part  of  which  was  unexpired  ;  on  demurrer  to  the 
plea,  the  declaration  was  held  good,  but  it  was  said  "  that 
the  plaintiff  may  take  damages  for  the  departure  only,  not 
the  loss  of  service  during  the  term  ;  and  then  it  will  be  well 
enough."  But  if  this  be  law  to-day  in  actions  on  indentures 
of  apprenticeship,  it  must  be  remembered  that  the}-  are 
peculiar  contracts,  in  which  the  rights  and  obligations  of  the 
parties  are  often  affected  by  statutory  regulations,  and  in 
some  cases  they  cannot  be  avoided  or  treated  as  at  an  end  at 
the  will  of  the  parties. 

In  this  case,  the  declaration  alleges  in  effect  a  promise  to 
support  the  plaintiff  during  his  life,  from  and  after  receiving 
the  conveyance  of  certain  real  estate,  an  acceptance  of  such 
conveyance,  and  a  neglect  and  refusal  to  perform  the  agree- 
ment. These  are  sufficient  allegations  to  enable  the  plaintiff 
to  recover  damages  as  for  a  total  breach.  The  court  instructed 
the  jury  that,  "if  the  defendant  for  a  period  of  about  two 
years  neglected  to  furnish  aid  or  support  to  the  plaintiff, 
without  any  fault  of  the  plaintiff,  the  plaintiff  might  treat  the 
contract  as  at  an  end,  and  recover  damages  for  the  breach  of 
the  contract  as  a  whole."  We  cannot  say  that  this  instruc- 
tion was  erroneous  as  applied  to  the  facts  in  evidence  in  the 
cause,  which  are  not  set  out. 

The  jury  must  have  found  that  the  plaintiff  did  treat  the 
contract  as  finally  broken  by  the  defendant,  and  the  propriety 
of  this  finding  on  the  evidence  is  not  before  us. 

Judgment  on  the  verdict  for  the  larger  sum. 


280 


CASES  ON  DAMAGES. 


JOSEPH  SCHLITZ  BREWING  CO.  v.  COMPTON. 

Illinois,  1892.     142  111.  511. 

Action  on  the  case  for  a  nuisance  caused  by  water  flowing 
from  defendant's  eaves  against  the  wall  and  into  the  windows 
and  cellar  of  plaintiffs  adjoining  building.1 

Magruder,  J.  Proof  was  introduced  of  damage  done  to 
plaintiffs  property  after  the  commencement  of  the  suit  by 
reason  of  rain-storms  then  occurring.  The  defendant  asked, 
and  the  court  refused  to  give,  the  following  instruction : 
"The  court  instructs  the  jury  that  the  suit  now  being  tried 
was  commenced  in  the  month  of  April,  1890,  and  that  they 
are  not  to  take  into  consideration  the  question  as  to  whether 
or  not  any  damage  has  accrued  to  plaintiff's  property  since 
the  commencement  of  this  suit."  The  question  presented  is 
whether  plaintiff  was  entitled  to  recover  only  such  damages 
as  accrued  before  and  up  to  the  beginning  of  her  suit,  leaving 
subsequent  damages  to  be  sued  for  in  subsequent  suits,  or 
whether  she  was  entitled  to  estimate  and  recover  in  one 
action  all  damages  resulting  both  before  and  after  the  com- 
mencement of  this  suit.  The  rule  originally,  at  common  law, 
was  that  in  personal  actions  damages  could  be  recovered  only 
up  to  the  time  of  the  commencement  of  the  action.  3  Com. 
Dig.  tit.  "Damages,"  D.  The  rule  subsequently  prevailing 
in  such  actions  is  that  damages  accruing  after  the  commence- 
ment of  the  suit  may  be  recovered,  if  they  are  the  natural 
and  necessar}'  result  of  the  act  complained  of,  and  where  they 
do  not  themselves  constitute  a  new  cause  of  action.  Wood's 
Mayne,  Dam.  §  103  ;  Birchard  v.  Booth,  4  Wis.  67  ;  Slater 
v.  Rink,  18  111.  527;  Fetter  v.  Beal,  1  Salk.  11 ;  Howell  v. 
Goodrich,  69  111.  556.  In  actions  of  trespass  to  the  realt}', 
it  is  said  that  damages  ma}-  be  recovered  up  to  the  time  of 

1  This  short  statement  is  substituted  fo*  the  statement  of  facts  as  it 
appears  in  the  report. 


JOSEPH   SCHLITZ   BREWING  CO.  v.  COMPTON.      281 

the  verdict  (Com.  Dig.  363,  tit.  "Damages,"  D.),  and  the 
reason  why,  in  such  cases,  all  the  damages  may  be  recovered 
in  a  single  action,  is  that  the  trespass  is  the  cause  of  action, 
and  the  injury  resulting  is  merely  the  result  of  damages. 
5  Amer.  &  Eng.  Enc.  Law,  p.  16,  case  cited  in  note  2.  But 
in  the  case  of  nuisances  or  repeated  trespasses  recovery  can 
ordinarily  be  had  only  up  to  the  commencement  of  the  suit, 
because  every  continuance  or  repetition  of  the  nuisance  gives 
rise  to  a  new  cause  of  action,  and  the  plaintiff  may  bring 
successive  actions  as  long  as  the  nuisance  lasts.  McConnel 
v.  Kibbe,  29  111.  483,  and  33  111.  175;  Railroad  Co.  v. 
Moffltt,  75  111.  524;  Railroad  Co.  v.  Schaffer,  124  111.  112. 
The  cause  of  action,  in  case  of  an  ordinary  nuisance,  is  not 
so  much  the  act  of  the  defendant  as  the  injurious  consequen- 
ces resulting  from  his  act,  and  hence  the  cause  of  action 
does  not  arise  until  such  consequences  occur ;  nor  can  the 
damages  be  estimated  be}-ond  the  date  of  bringing  the  first 
suit.  5  Amer.  &  Eng.  Enc.  Law,  p.  17,  and  cases  in  notes. 
It  has  been  held,  however,  that  where  permanent  structures 
are  erected,  resulting  in  injury  to  adjacent  realty,  all  dam- 
ages may  be  recovered  in  a  single  suit.  Id.  p.  20,  and 
cases  in  note. 

But  there  is  much  confusion  among  the  authorities  which 
attempt  to  distinguish  between  cases  where  successive  actions 
lie  and  those  in  which  only  one  action  may  be  brought. 
This  confusion  seems  to  arise  from  the  different  views  enter- 
tained in  regard  to  the  circumstances  under  which  the  injury 
suffered  by  the  plaintiff  from  the  act  of  the  defendant  shall 
be  regarded  as  a  permanent  injury.  "The  chief  difficult}*  in 
this  subject  concerns  acts  which  result  in  what  effects  a  per- 
manent change  in  the  plaintiff's  land,  and  is  at  the  same 
time  a  nuisance  or  trespass."  Sedg.  Dam.  (8th  ed.)  §  94. 
Some  cases  hold  it  to  be  unreasonable  to  assume  that  a 
nuisance  or  illegal  act  will  continue  forever,  and  therefore 
refuse  to  give  entire  damages  as  for  a  permanent  injury, 
but  allow  such  damages  for  the  continuation  of  the  wrong 
as    accrued  up   to  the  date  of  the   bringing  of  the   suit 


282  CASES  ON  DAMAGES. 

Other  cases  take  the  ground  that  the  entire  controversy 
should  be  settled  in  a  single  suit,  and  that  damages  should 
be  allowed  for  the  whole  injury,  past  and  prospective,  if 
such  injury  be  proven  with  reasonable  certainty  to  be 
permanent  in  its  character.  Id.  §  94.  We  think,  upon 
the  whole,  that  the  more  correct  view  is  presented  in  the 
former  class  of  cases.  1  Suth.  Dam.  199-202  ;  3  Suth.  Dam. 
369-399;  1  Sedg.  Dam.  (8th  ed.)  §§  91-94;  Uline  v.  Rail- 
road Co.,  101  N.  Y.  98;  Duryea  u.  Mayor,  26  Hun,  120; 
Blunt  v.  McCormick,  3  Denio,  283  ;  Cooke  v.  England,  92 
Amer.  Dec.  630,  notes  ;  Reed  v.  State,  108  N.  Y.  407  ;  Har- 
greaves  v.  Kimberly,  26  W.  Va.  787  ;  Ottenot  v.  Railroad 
Co.,  119  N.  Y.  603  ;  Cobb  v.  Smith,  38  Wis.  21  ;  Canal  Co. 
v.  Wright,  21  N.  J.  Law,  469;  Wells  v.  Northampton  Co., 
151  Mass.  46  ;  Barrick  v.  Schifferdecker,  123  N.  Y.  52 ; 
Silsby  Manufg  Co.  v.  State,  104  N.  Y.  562  ;  Aldworth  v.  City 
of  Lynn,  153  Mass.  53;  Town  of  Troy  v.  Railroad  Co.,  23 
N.  H.  83;  Cooper  r.  Randall,  59  111.  317;  Railroad  Co.  v. 
Hoag,  90  111.  339.  We  do  not  wish  to  be  understood,  how- 
ever, as  holding  that  the  rule  laid  down  in  the  second  class 
of  cases  is  not  applicable  under  some  circumstances,  as  in  the 
case  of  permanent  injury  caused  by  lawful  public  structures, 
properly  constructed  and  permanent  in  their  character.  In 
Uline  v.  Railroad  Co.,  supra,  a  railroad  company  raised  the 
grade  of  the  street  in  front  of  plaintiffs  lots  so  as  to  pour  the 
water  therefrom  down  over  the  sidewalk  into  the  basement  of 
the  houses,  flooding  the  same  with  water,  and  rendering  them 
damp,  unhealthy,  etc.,  and  injuring  the  rental  value,  etc.  In 
discussing  the  question  of  the  damages  to  which  the  plaintiff 
was  entitled  the  court  say:  "  The  question,  however,  still  re- 
mains, what  damages?  All  her  damages  upon  the  assumption 
that  the  nuisance  was  to  be  permanent,  or  only  such  damages 
as  she  sustained  up  to  the  commencement  of  the  action?  .  .  . 
There  has  never  been  in  this  State  before  this  case  the  least 
doubt  expressed  in  any  judicial  decision  .  .  .  that  the  plain- 
tiff, in  such  a  case,  is  entitled  to  recover  only  up  to  the 
commencement  of  the  action.    That  such  is  the  rule  is  as  well 


JOSEPH  SCHLITZ  BREWING   CO.   v.   COMPTOX.     283 

settled  here  as  any  rule  of  law  can  be  by  repeated  and  uni- 
form decisions  of  all  the  courts,  and  it  is  the  prevailing  doc- 
trine elsewhere."  Then  follows  an  exhaustive  review  of  the 
authorities,  which  sustain  the  conclusion  of  the  court  as 
above  announced.  In  Duryea  v.  Ma3"or,  supra,  the  action 
was  brought  to  recover  damages  occasioned  by  the  wrongful 
acts  of  one  who  had  discharged  water  and  sewerage  upon  the 
land  of  another,  and  it  was  held  that  no  recovery  could  be  had 
for  damages  occasioned  by  the  discharge  of  the  water  and  sew- 
age upon  the  land  after  the  commencement  of  the  action.  In 
Blunt  v.  McCormick,  supra,  the  action  was  brought  by  a  tenant 
to  recover  damages  against  his  landlord  because  of  the  latter's 
erection  of  a  building  adjoining  the  demised  premises,  which 
shut  out  the  light  from  the  tenant's  windows  and  doors  ;  and 
it  was  held  that  damages  could  only  be  recovered  for  the 
time  which  had  elapsed  when  the  suit  was  commenced,  and 
not  for  the  whole  term.  In  Hargreaves  v.  Kimberly,  supra, 
the  action  was  case  to  recover  damages  for  causing  surface 
water  to  flow  on  plaintiff's  lot,  and  for  injury  to  his  trees  by 
the  use  of  coke  ovens  near  said  lot,  and  for  injury  thereby 
to  his  health  and  comfort ;  and  it  was  held  to  be  error  to 
permit  a  witness  to  answer  the  following  question  :  "  What 
will  be  the  future  damage  to  the  property  from  the  acts  of  the 
defendant?"  the  court  saying  :  "  In  all  those  cases  where  the 
cause  of  the  injury  is  in  its  nature  permanent,  and  a  recovery 
for  such  injury  would  confer  a  license  on  the  defendant  to 
continue  the  cause,  the  entire  damage  may  be  recovered  in 
a  single  action  ;  but  where  the  cause  of  the  injury  is  in  the 
nature  of  a  nuisance,  and  not  permanent  in  its  character, 
but  of  such  a  character  that  it  may  be  supposed  that  the  de- 
fendant would  remove  it  rather  than  suffer  at  once  the  entire 
damage  which  it  may  inflict  if  permanent,  then  the  entire 
damage  cannot  be  recovered  in  a  single  action  ;  but  actions 
may  be  maintained  from  time  to  time  as  long  as  the  cause  of 
the  injury  continues."  In  Wells  v.  Northampton  Co.,  supra, 
where  a  railroad  company  maintained  a  culvert  under  its  em- 
bankment, which  impaired  land  by  discharging  water  on  it, 


284  CASES  ON  DAMAGES. 

it  was  held  that  the  case  fell  within  the  ordinary  rule  appli- 
cable  to   continuing   nuisances    and   continuing   trespasses. 
Reference  was  made  to  Uline  v.  Railroad  Co.,  supra,  and  the 
following  language  was  used  by  the  court:  "If  the  defend- 
ant's act  was  wrongful  at  the  outset,  as  the  jury  have  found, 
we  see  no  way  in  which  the  continuance  of  its  structure  in  its 
wrongful  form  could  become  rightful  as  against  the  plaintiff, 
unless  by  release  or  grant  by  prescription  or  by  the  payment 
of  damages.     If  originally  wrongful,  it  has  not  become  right- 
ful merely  by  being  built  in  an  enduring  manner."     In  Aid- 
worth  v.  City  of  Lynn,  supra,  where  the  action   was   for 
damages   sustained  by  a  landowner   through  the   improper 
erection    and  maintenance  of  a  dam  and  reservoir  by  the 
city  of  Lynn  on  adjoining  land,  the  Supreme  Court  of  Massa- 
chusetts say:  "The  plaintiff  excepted  to  the  ruling  that  she 
was  entitled  to  recover  damages  only  to  the  date  of  her  writ, 
and  contended  that  the  dam  and  pond  were  permanent,  and 
that  she  was  entitled  to  damages  for  a  permanent  injury  to 
her  property.     An  erection  unlawfully  maintained  on  one's 
own  land,  to  the  detriment  of  the  land  of  a  neighbor,  is  a 
continuing  nuisance,  for  the  maintenance  of  which  an  action 
may  be  brought  at  any  time,  and  damages  recovered  up  to 
the  time  of  bringing  the  suit.  .  .  .  That  it  is  of  a  permanent 
character,  or  that  it  has  been  continued  for  any  length  of 
time  less  than  what  is  necessary  to  acquire  a  prescriptive 
right,  does  not  make  it  lawful,  nor  deprive  the  adjacent  land- 
owner of  his  right  to  recover  damages.     Nor  can  the  ad- 
jacent landowner,  in  such  a  case,  who  sues  for  damage  to 
his  property,  compel  the  defendant  to  pay  damages  for  the 
future.     The  defendant  may  prefer  to  change  his  use  of  his 
property  so  far  as  to  make  his  conduct  lawful.     In  the  pres- 
ent case  we  cannot  say  that  the  defendant  may  not  repair  or 
reconstruct  its  dam  and  reservoir  in  such  a  way  as  to  prevent 
percolation  with  much  less  expenditure  than  would  be  required 
to  pay  damages  for  a  permanent  injury  to  the  plaintiffs  land." 
In  the  case  at  bar  the  defendant  did  not  erect  the  house 
upon  plaintiff's  land,  but  upon  its  own  land.     It  does  not 


JOSEPH  SCHLITZ   BREWING  CO.  v.   COMPTON.      285 

appear  that  such  change  might  not  be  made  in  the  roof,  or 
in  the  manner  of  discharging  the  water  from  the  roof,  as  to 
avoid  the  injury  complained  of.     The  first  count  of  the  dec- 
laration, by  its  express  terms,  limits  the  recovery  for  dam- 
ages arising  from  the  negligent  and  improper  construction  of 
defendant's  building  to  such  injuries  as  were  inflicted  "  before 
the   commencement   of  the   suit."      The   second  count  was 
framed  in  such  a  way  as  to  authorize  a  recovery  of  damages 
for  the  flow  of  water  upon   plaintiff's  premises  from  some 
other  cause  than  the  wrongful  construction  of  defendant's 
building ;  and  accordingly  plaintiff's  evidence  tends  to  show 
that  the  eave  trough,  designed  to  carry  off  the  water  from 
the  roof,  was  so  placed  as  to  fail  of  the  purpose  for  which 
it  was  intended.     It  cannot  be  said  that  the  eave  trough  was 
a  structure  of  such  a  permanent  character  that  it  might  not 
be  changed,  nor  can  it  be  said  that  the  defendant  would  not 
remove  the  cause  of  the  injury  rather  than  submit  to  a  re- 
covery of  entire  damages  for  a  permanent  injury,  or  suffer 
repeated  recoveries  during  the  continuance  of  the    injury. 
The  facts  in  the  record  tend  to  show  a  continuing  nuisance, 
as  the  same  is  defined  in  Aldworth  v.  City  of  Lynn,  <mpra. 
There  is  a  legal  obligation  to  remove  a  nuisance  ;  and  - '  the 
law  will  not  presume  the  continuance  of  the  wrong,  nor  allow 
a  license  to  continue  a  wrong,  or  a  trespass  of  title,  to  result 
from  the  recovery  of  damages  for  prospective  misconduct." 
1  Suth.  Dam.  199,  and  notes.     The  question  now  under  con- 
sideration has  been  before  this  court  in  Cooper  v.  Randall, 
supra.     The  action  was  for  damages  to  plaintiff's  premises, 
caused  by  constructing  and  operating  a  flouring-mill  on  a  lot 
near  said  premises,  whereby  chaff,  dust,  dirt,  etc.,  were  thrown 
from  the  mill  into  plaintiff's  house.     It  was  there  held  that 
the  trial  court  committed  no  error  in  refusing  to  permit  the 
plaintiff  to  prove  that  the  chaff  thrown  upon   his  premises 
by  the  mill  after  the  suit  was  commenced  had  seriously  im- 
paired the  value  of  the  property,  and  prevented  the  renting 
of  the  house  ;  and  we  there  said:  "When  subsequent  dam- 
ages are  produced  by  subsequent  acts,  then  the  damages 


286  CASES  ON  DAMAGES. 

should  be  strictly  confined  to  those  sustained  before  suit 
brought."  It  is  true  that  the  operation  of  the  mill,  causing 
the  dust  to  fly,  was  the  act  of  the  defendant ;  but  it  cannot 
be  said  that  it  was  not  the  continuing  act  of  the  present  ap- 
pellant to  allow  the  roof  or  the  eave  trough  to  remain  in  such  a 
condition  as  to  send  the  water  against  appellee's  house  upon 
the  occurrence  of  a  rain-storm.  Xor  is  appellant's  house  or 
eave  trough  an}'  more  permanent  than  was  the  mill  in  the 
Cooper  Case.  In  Railroad  Co.  v.  Hoag,  supra,  a  railroad 
company  had  turned  its  waste  water  from  a  tauk  upon  the 
premises  of  the  plaintiff,  where  it  spread  and  froze,  and  a 
recovery  was  allowed  for  damages  suffered  after  the  com- 
mencement of  the  suit ;  but  it  there  appeared  that  the  ice, 
which  caused  the  damage,  was  upon  plaintiff's  premises  before 
the  beginning  of  the  suit,  and  the  damage  caused  resulted  from 
the  melting  of  the  ice  after  the  suit  was  brought.  It  was 
there  said :  "  The  injury  sustained  by  appellee  between  the 
commencement  of  the  suit  and  the  trial  was  not  from  any 
wrongful  act  done  by  appellant  during  that  time,  but  followed 
from  acts  done  before  the  suit  was  commenced."  Here  the 
water,  which  caused  the  injury,  was  not  upon  plaintiffs 
premises,  either  in  a  congealed  or  liquid  state,  before  the  be- 
ginning of  the  suit,  but  flowed  thereon  as  the  result  of  rain- 
storms which  occurred  after  the  suit  was  commenced.  We 
think  the  correct  rule  upon  this  subject  is  stated  as  follows  : 
"  If  a  private  structure  or  other  work  on  land  is  the  cause  of 
a  nuisance  or  other  tort  to  the  plaintiff,  the  law  cannot  re- 
gard it  as  permanent,  no  matter  with  what  intention  it  was 
built ;  and  damages  can  therefore  be  recovered  onby  to  the 
date  of  the  action."  1  Sedg.  Dam.  (8th  ed.)  §  93.  It  fol- 
lows from  the  foregoing  observations  that  it  was  error  to 
allow  the  plaintiff  to  introduce  proof  of  damage  to  her  prop- 
ert}'  caused  bj*  rain-storms  occurring  after  the  commencement 
of  her  suit,  and  that  the  instruction  asked  by  the  defendant 
upon  that  subject,  as  the  same  is  above  set  forth,  should  have 
been  given.  The  judgments  of  the  Appellate  and  Circuit  Courts 
are  reversed,  and  the  cause  is  remanded  to  the  Circuit  Court. 


HOPPLE  v.   HIGBEE.  287 

Section  2. —  Reduction;  Benefits. 

HOPPLE    v.  HIGBEE. 

New  Jersey,  1852.     3  Zab.  342. 

Green,  C.  J.  In  the  action  of  trespass  de  bo?iis  asportatis 
damages  are  allowed  upon  two  grounds,  viz. :  1.  By  way  of 
compensation  for  the  loss  of  the  goods.  2.  As  vindictive  or 
exemplary  damages  for  a  wanton  or  malicious  injury  to  the 
rights  or  feelings  of  the  plaintiff,  as  a  public  example  to  pre- 
vent a  repetition  of  the  act.  Where  the  trespass  is  accom- 
panied by  no  circumstances  of  aggravation,  the  value  of  the 
property  to  the  plaintiff  at  the  time  of  the  injury,  with  inter- 
est, furnishes  ordinarily  the  measure  of  damages.  Pacific 
Ins.  Co.  v.  Conrad,  Bald.   138;  Sedgwick  on  Damages,  549. 

Where  there  are  no  circumstances  of  aggravation  where 
vindictive  or  exemplary  damages  are  not  claimed,  the  meas- 
ure of  damages  is  compensation  to  the  plaintiff  for  his  loss. 
And  hence,  when  the  goods  taken  by  the  trespasser  are  re- 
stored to  the  plaintiff  and  accepted  b}'  him,  that  fact  may  be 
shown  in  mitigation  of  damages.  It  will  not,  indeed,  justify 
the  tort  nor  absolve  the  tort-feasor  from  the  legal  conse- 
quences of  his  wrongful  act ;  but  it  will  show  that  the  plaintiff 
has  sustained  less  injury,  and  is  consequently  entitled  to  less 
damages  by  way  of  compensation  than  he  otherwise  would 
have  been.  2  Rolle's  Ab.  569,  pi.  3  ;  Com.  Dig.  "  Trespass" 
B  4;  Bac.  Ab.  "Trespass"  E  2. 

So  if  the  property,  while  in  the  hands  of  the  trespasser,  be 
attached  or  taken  in  execution  upon  process  issued  at  the 
suit  of  a  third  party  against  the  owner  of  the  goods,  and  they 
be  thus  applied  by  sanction  of  law  in  satisfaction  of  the  own- 
er's debt,  or  otherwise  for  his  benefit,  that  fact,  the  cases 
agree,  ma}'  be  shown  in  mitigation  of  damages.  Higgins  v. 
Whitney,  24  Wend.  379;  Squire  v.  Hollenbeck,  9  Pick.  551 ; 
Sherrv  v.  Schuyler,  2  Hill,  204  ;  Irish  v.  Cloyes,  8  Vt.  30. 


288  CASES  ON  DAMAGES. 

But  it  is  said,  that  although  if  taken  out  of  the  hands  of 
the  wrongdoer  by  legal  process  at  the  instance  of  a  third 
party,  that  fact  may  be  shown  in  mitigation  of  damages ; 
the  rule  does  not  apply  where  the  process  is  sued  out  by  the 
trespasser  himself,  because  the  trespasser  cannot  mitigate 
damages  by  showing  that  he  had  himself  applied  the  property 
to  the  owner's  use  without  his  consent.  Hanmer  v.  Wilsey, 
17  Wend.  91 ;  Otis  v.  Jones,  21  Wend.  394  ;  Higgins  v.  Whit- 
ney, 24  Weud.  379. 

So  far  as  the  question  of  compensation  to  the  plaintiff  is 
concerned,  it  is  obviously  immaterial  whether  the  goods  are 
taken  from  the  wrongdoer  by  process,  sued  out  by  the  wrong- 
doer himself  or  by  a  third  party.  In  either  event  the}-  are 
applied  to  the  plaintiff's  use,  and  his  loss,  by  reason  of  the 
trespass,  is  diminished  as  much  in  the  one  case  as  in  the 
other.  Upon  the  mere  question  of  compensation,  the  distinc- 
tion sought  to  be  established  is  without  foundation.  If  the 
distinction  exist,  it  must  rest  upon  principles  of  polic}-  or  upon 
some  ground  distinct  from  the  mere  right  of  the  plaintiff  to 
compensation  for  his  loss. 

And  it  was  accordingly  held  bj-  the  Supreme  Court  of  New 
York  that  the  evidence  was  inadmissible,  because  the  tres- 
passer cannot  by  any  act  of  his  own,  without  the  plaintiff's 
consent,  relieve  himself  from  the  consequence  of  his  tort,  or 
deprive  the  plaintiff  of  redress  for  the  injury  inflicted.  It  is  true 
that  the  trespasser  cannot  b}T  his  own  mere  act  either  restore 
the  property  to  the  plaintiff,  or  apply  it  to  his  use,  without 
his  consent.  Nor  can  the  trespasser  appropriate  the  property 
wrongfully  seized  either  to  pay  a  de  i  due  to  himself  or  to 
an}'  other  creditor,  except  by  consent  of  the  debtor  or  by 
sanction  of  law.  But  where  the  goods  are  seized  in  the 
hands  of  the  trespasser  b}r  legal  process,  and  applied  to  the 
payment  of  the  debts  of  the  owner,  they  are  not  so  applied  by 
the  act  of  the  tort-feasor,  but  by  act  and  operation  of  law. 
And,  upon  principle,  it  is  perfectly  immaterial  whether  the 
machinery  of  law  be  set  in  operation  b}-  a  third  party  or  by 
the  tort-feasor  himself.     In  either  event  the  property  of  the 


HOPPLE  v.   HIGBEE.  289 

plaintiff,  unlawfully  taken  from  bis  possession,  is  by  sanction 
of  law  taken  from  tbe  trespasser,  and  applied  to  the  use  of 
the  owner.  As  a  matter  of  right  and  justice,  therefore,  he  is 
entitled  to  so  much  less  damages  as  a  compensation  for  his 
injury. 

It  is  clear,  moreover,  that  the  ownership  of  the  goods  is 
unchanged  by  the  tort.  They  remain  in  the  hands  of  the 
trespasser  liable  to  be  seized  by  legal  process  against  the 
owner,  and  thus  appropriated  to  his  use.  Any  creditor  may 
thus  sue  out  process,  seize  and  appropriate  them.  It  cannot 
be  contended  that  the  trespasser  has  forfeited  his  rights  as  a 
creditor,  or  that  he  has  not  the  same  right  to  sue  and  attach 
the  goods  as  any  other  creditor  has.  And  if  the  goods  may 
thus  be  legally  taken  from  the  defendant's  possession,  and 
applied  to  the  plaintiff's  use,  it  is  difficult  to  conceive  of 
any  rule  of  law  or  principle  of  justice  which  would  compel 
the  trespasser  to  respond  for  the  value  of  the  goods,  or 
permit  the  plaintiff  to  recover  their  full  value,  by  way  of 
compensation. 

In  the  case  now  under  consideration,  the  goods  were  origi- 
nally seized  by  virtue  of  an  attachment  issued  by  a  justice  for 
an  amount  beyond  his  jurisdiction.  The  process  was  conse- 
quently void,  and  the  plaintiff  in  the  attachment  and  the  offi- 
cer who  served  the  process  became  liable  as  trespassers.  It 
cannot  be  denied  that  the  plaintiff  had  a  right  to  sue  out  a 
second  and  valid  attachment,  and  that  it  was  not  only  the 
right,  but  the  duty  of  the  officer  to  attach  the  same  goods  to 
answer  the  claim  of  Hie  plaintiff.  And  if,  b}r  operation  and 
judgment  of  law,  the  goods  were  applied  to  the  plaintiff's  use, 
his  damages  resulting  from  the  unlawful  act  were  pro  tanto 
diminished,  and  it  would  seem  to  be  perfectly  immaterial,  so 
far  as  the  question  of  damages  resulting  from  the  trespass  is 
concerned,  whether  the  attachment  was  sued  out  by  A.  or  by 
B.,  or  whether  the  property  was  applied  to  pay  a  debt  of  the 
plaintiff  or  of  any  of  the  creditors  who  came  in  under  the 
attachment. 

The  force  of  the  objection  consists  in  the  position,  that  the 

19 


290  CASES  ON  DAMAGES. 

act  of  the  wrongdoer,  after  the  trespass  has  been  committed, 
and  the  right  of  the  plaintiff  to  redress  is  consummate,  cannot 
divest  the  plaintiff  of  any  part  of  his  remedy.  It  is  not  con- 
tended that  it  cau  purge  the  tort,  but  merely  that  it  may 
qualify  the  injury  which  the  plaintiff  has  received. 

There  are  numerous  authorities  which,  by  analogy,  sustain 
the  position. 

Thus,  in  an  action  by  an  executor  against  an  executor  de 
son  tort,  the  defendant  may  show  in  mitigation  of  damages 
the  due  payment  of  the  debts  of  the  decedent.  Whitehall  v. 
Squire,  Carth.  104  ;  2  Saund.  P.  and  E.  888 ;  Buller's  N.  P. 
48. 

He  cannot  plead  in  justification  payment  of  the  debts  to 
the  value  of  the  goods ;  but,  upon  the  general  issue,  those 
payments  shall  be  recognized  in  damages.     2  Phil.  Ev.  125. 

In  Prescott  v.  Wright,  6  Mass.  20,  which  was  an  action 
of  trover  by  a  defendant  in  execution  against  a  constable  who 
levied  the  execution  after  it  was  returnable,  the  court  held 
that  the  levy  was  without  legal  authorit}-  and  a  conversion. 
"But,"  say  the  court,  "as  the  defendant  paid  a  debt  due 
from  the  plaintiff  out  of  the  proceeds,  this  fact  may  mitigate 
the  damages."  The  same  principle  was  adopted  in  Caldwell 
v.  Eaton,  5  Mass.  404. 

In  Pierce  v.  Benjamin,  14  Pick.  356,  the  plaintiff  sued  in 
trover  for  goods  taken  and  sold  by  a  tax  collector  under  a  tax 
warrant.  The  goods  were  sold  in  violation  of  law,  and  the 
proceeds  applied  in  part  payment  of  the  plaintiff's  tax.  It 
was  held  that  the  defendant,  by  virtue  of  his  unlawful  pro- 
ceedings, became  liable  as  a  trespasser  ab  initio,  but  that  the 
amount  of  the  proceeds  of  the  sale  applied  toward  the  pay- 
ment of  the  plaintiff's  tax  must  be  deducted  from  the  value  of 
the  goods  in  ascertaining  the  amount  of  damages. 

The  court  say,  "  The  general  rule  of  damages  in  actions  of 
trover  is  unquestionably  the  value  of  the  property  taken  at 
the  time  of  its  conversion.  But  there  are  exceptions  and 
qualifications  of  this  rule,  as  plain  and  well  established  as  the 
rule  itself.     Whenever  the  property  is  returned,  and  received 


HOPPLE  v.  HIGBEE.  291 

by  the  plaintiff,  the  rule  does  not  apply  ;  and  when  the  prop- 
erty itself  has  been  sold,  and  the  proceeds  applied  to  the 
payment  of  the  plaintiff's  debt,  or  otherwise  to  his  use,  the 
reason  of  the  rule  ceases,  and  justice  forbids  its  application. 
In  all  such  cases  the  facts  may  be  shown  in  mitigation  of 
damages."     Accord  Blake  v.  Johnson,  1  N.  H.  91. 

Judge  Greenleaf,  one  of  the  most  accurate  of  elementary 
writers,  lays  down  the  rule  with  equal  clearness:  "If  the 
property,  in  whole  or  in  part,  has  been  applied  to  the  payment 
of  the  plaintiff's  debt,  or  otherwise  to  his  use,  this  may  be 
considered  by  the  jury  as  diminishing  the  injury,  and  conse- 
quently the  damages."     2  Greenl.  Ev.  §  276. 

The  rule,  it  may  be  admitted,  is  too  broadly  stated.  The 
unauthorized  appropriation  by  a  trespasser  of  the  goods 
wrongfully  taken  to  pay  the  owner's  debts,  it  may  be,  would 
be  inadmissible  in  evidence  in  mitigation  of  damages.  But  if 
the  goods  wrongfully  taken  be  thus  appropriated,  either  by 
the  consent  of  the  owner  or  by  sanction  and  operation  of  law, 
there  would  seem  to  be  no  just  ground  for  questioning  the 
soundness  of  the  principle.  In  Lamb  v.  Day  and  Peck,  8 
Vt.  407,  the  plaintiff  brought  an  action  of  trespass  against 
the  attaching  officer  and  the  plaintiff  in  attachment  for  unlaw- 
fully using  a  horse,  the  property  attached.  The  plaintiff  in 
attachment  subsequently  recovered  judgment,  and  the  horse 
was  sold,  by  virtue  of  an  execution,  in  satisfaction  of  the 
judgment.  The  defendants  were  held  trespassers  ab  initio 
by  reason  of  the  unlawful  use  of  the  horse.  But  the  court 
said,  "  placing  the  liability  of  the  defendants  on  the  footing  of 
the  original  taking  as  an  act  of  trespass,  still  the  ultimate 
disposition  of  the  horse  is  material  to  the  question  of  dam- 
ages ;  and  as  the  property  was  applied  in  satisfaction  of  the 
plaintiff's  debt,  that  circumstance  serves  to  reduce  the  dam- 
ages accordingly." 

In  Stewart  v.  Martin,  16  Vt.  397,  the  constable,  having 
seized  property  by  virtue  of  mesne  process  of  attachment  out 
of  his  jurisdiction,  was  sued  in  trespass  for  such  taking.  It 
was  held  that  the  defendant  might  show,  in  mitigation  of 


292  CASES  ON  DAMAGES. 

damages,  that,  having  taken  the  property  to  a  place  within 
his  jurisdiction,  he  attached  it  there,  on  the  same  process  as 
the  property  of  the  same  debtor,  after  the  action  of  trespass 
had  been  commenced  against  him.  The  same  rule  was  adopted 
in  Board  v.  Head,  3  Dana's  Rep.  489,  494. 

So  in  Briggins  v.  Grove,  Cromp.  &  J.  36,  it  was  held  that 
where  a  distress  was  taken  and  sold  unlawfully  without  pre- 
vious appraisement,  the  party  distrained  on  can  onhy  recover 
the  value  of  the  goods  distrained  less  the  amount  of  rent  due, 
though  he  may  recover  special  damages  for  the  illegal  sale. 

It  is  true  it  was  held  in  Sowell  v.  Champion,  6  Ad.  &  El. 
407,  that  where  goods  are  seized  under  process  upon  a  regular 
judgment  in  a  place  to  which  the  process  did  not  run,  the 
plaintiff  might  recover  the  whole  value  of  the  goods,  and  not 
the  mere  damages  sustained  by  their  being  taken  in  a  wrong 
place.  In  delivering  the  opinion,  Denman,  C.J.,  says, 
"  parties  are  not  to  extort  what  is  justhy  due  by  the  improper 
execution  of  a  warrant."  That  may  well  be.  But  it  must  be 
borne  in  mind  that  exemplary  or  vindictive  damages  may 
in  all  proper  cases  be  given  for  a  trespass  committed  under 
color  of  legal  process.  And  whenever  a  plaintiff,  or  the  offi- 
cer serving  process,  shall  wantonlj*  or  injuriously  attach  or 
take  in  execution  the  property  of  the  defendant  without  law- 
ful authority,  a  jury  may  repress  the  evil  and  redress  the 
injury  b\r  awarding  exemplary  damages.  But  it  is  not  per- 
ceived that  a  regard  either  for  public  justice  or  the  rights  of 
individuals  can  require  that  a  plaintiff  who  sues  out  process 
in  good  faith  which  proves  to  be  void,  or  the  officer  who  exe- 
cutes such  process,  shall  be  therelry  estopped  from  suing  out 
or  executing  valid  process  upon  the  property  thus  wrongfully 
taken,  or  that  the  party  injured  shall  be  thereby  entitled  to 
recover  the  full  value  of  the  property  in  damages,  although 
they  were  lawfully  appropriated  in  satisfaction  of  his  own 
debt. 

If  the  evidence  be  competent  by  way  of  mitigating  dam- 
ages, it  is  clearby  admissible  under  the  general  issue.  It 
could  not  be  specially  pleaded.     Pleas  in  bar  are  in  discharge 


TORRY   v.   BLACK.  293 

of  the  action,  and  every  plea  must  be  pleaded  to  the  action. 
A  plea  to  the  damages  merely  is  vicious.  Matters  in  mitiga- 
tion, therefore,  cannot  be  pleaded,  and  can  only  be  given  in 
evidence  under  the  general  issue.  2  Greenl.  §  625  ;  1  Chit. 
PI.  (7th  ed.)  539,  541  ;  Demick  v.  Chapman,  11  Johns.  132. 
The  judgment  must  be  reversed,  and  a  venire  tie  novo 
awarded. 

TORRY  v.   BLACK. 
New  York,  1874.     58  N.  Y.  185. 

This  was  an  action  of  trespass  for  cutting  and  carrying 
away  wood  and  timber  from  plaintiff's  lands. 

In  1851  the  father  of  the  plaintiff  died  intestate,  leaving  a 
large  real  estate.  He  left  surviving  him  a  widow  and  the 
plaintiff,  who  was  his  only  heir,  then  about  one  year  old. 
The  defendant  was  the  grandfather  of  the  plaintiff,  and  he 
took  out  letters  of  administration  on  the  estate  of  plaintiff's 
father.  The  grandfather,  after  taking  out  letters  of  adminis- 
tration, and  between  the  years  1851  and  18G6,  cut  and  carried 
away  a  large  quantity  of  timber  growing  on  the  land  that 
descended  to  the  plaintiff.  The  plaintiff,  on  attaining  his 
majority,  brought  this  action  to  recover  damages  for  such 
unlawful  cutting  and  carrying  awa}\ 

The  defence  set  up  in  the  answer  is,  that  the  timber  was 
cut  with  the  consent  and  approval  of  plaintiff's  mother,  who 
was  his  guardian  and  entitled  to  dower  in  said  premises,  and 
that  he  afterward  settled  with  her  for  the  said  timber  and 
was  released  by  her  from  all  claims  therefor.1 

Grover,  J.  We  have  seen  that  the  defendant  was  liable 
as  a  trespasser  for  cutting  the  timber.  A  trespasser  cannot 
mitigate  the  damages  by  an  offer  to  return  the  property  to  its 
owner ;  but  if  the  owner  accept  the  property,  or  otherwise 
regain  possession  of  it,  it  may  be  proved  for  that  purpose, 
as  in  that  case  he  is  not  deprived  of  his  property.  The  in- 
quiry is,  what  is  the  amount  of  damage  sustained  by  the 
1  Part  of  the  case  is  omitted. 


294  CASES  ON  DAMAGES. 

plaintiff  from  the  wrongful  act  of  the  defendant.  But  to 
warrant  this  evidence  the  propert}*  must  be  received  by  the 
plaintiff  or  applied  to  his  use  with  his  assent.  The  law  will 
not  permit  a  wrong-doer  to  take  the  property  of  another  and 
apply  the  same  to  his  use  without  his  assent ;  and,  if  so  ap- 
plied, the  damages  recoverable  for  the  injury  will  not  be 
thereby  affected.  When  the  owner  voluntarily  receives  the 
proceeds  of  the  property  wrongfully  taken,  or  directs  or 
assents  to  their  application  to  his  use,  such  facts  may  be 
shown  in  mitigation,  the  same  as  the  receipt  or  application  of 
the  identical  property  taken  by  the  trespasser.  The  fact  that 
the  defendant  was  administrator  of  the  estate  of  the  plaintiffs 
father  is  wholly  immaterial  in  this  action,  as  he  had  nothing 
in  that  character  to  do  with  his  real  estate,  unless  it  became 
necessary  to  sell  or  mortgage  it  for  the  payment  of  the  debts 
of  the  intestate. 

The  further  facts,  that  the  defendant  was  the  father  of 
the  plaintiffs  mother,  and  that  she  was  at  the  time  of  the 
death  of  his  father  under  twenty-one  years  of  age,  can  have 
no  effect  upon  the  legal  rights  of  the  parties.  We  have 
seen  that,  had  the  plaintiff  been  capable  of  contracting  for 
himself  and  had  received  from  the  defendant  the  proceeds  of 
the  timber,  or  the  same  had  been,  with  his  assent,  applied  to 
his  use,  these  facts  might  have  been  shown  in  mitigation  of 
damages.  But  the  plaintiff  was  not  so  capable.  His  mother 
was,  before  her  appointment  as  his  guardian  by  the  surrogate, 
guardian  for  him,  b}r  statute,  with  the  powers  of  a  guardian 
in  socage  (1  R.  S.  718,  §  5)  ;  as  such  she  was  authorized  to 
recover  damages  for,  or  reclaim  and  dispose  of  timber  wrong- 
fully cut  upon  his  land.  She  had  the  right  to  receive  for  his 
benefit  the  proceeds  of  any  timber  so  cut.  It  would  follow 
that  if  she  so  received  such  proceeds,  or  directed  or  assented 
to  the  application  thereof  to  his  benefit  or  that  of  his  estate, 
the  facts  may  be  proved  in  mitigation  of  damages.  The 
assent  of  the  guardian,  under  the  circumstances,  has  the 
same  effect  as  that  of  the  plaintiff  would  have  had  had  he 
been  sui  juris. 


JEWETT  v.   WHITNEY.  295 

JEWETT  v.  WHITNEY. 

Maine,  1857.     43  Me.  242. 

This  action  is  trespass  quare  clausum.1  The  plaintiff  for 
some  time  prior  to  July,  1834,  had  been  in  possession  of  the 
mill,  which  is  the  property  in  dispute,  taking  one  half  of  the 
profits  of  the  same,  at  which  time  the  defendant  took  posses- 
sion of  plaintiff's  part,  and  received  his  proportion  of  the 
earnings.  The  mill  was  soon  torn  down  and  rebuilt  by  defend- 
ant and  his  co-tenants,  using  so  much  of  the  old  as  was  proper 
for  the  new  mill.  Whereupon  this  action  is  brought  for  ex- 
pelling the  plaintiff,  tearing  down  the  mill,  converting  the 
same,  etc. 

May,  J.  The  proof  shows  that  the  mill,  standing  on  the 
premises  at  the  time  when  the  defendant  took  possession,  in 
July,  1854,  had  become  nearly  worthless.  It  was  so  rotten 
that  it  could  not  be  repaired,  and  the  witness,  Lebroke,  testi- 
fies that  it  was  almost  impossible  to  use  it.  In  its  then  condi- 
tion the  profits  of  it  could  not  have  exceeded  the  cost  of  the 
repairs.  Under  these  circumstances  the  defendant  co-operated 
with  the  co-tenants  of  the  plaintiff  in  tearing  down  the  old 
mill  and  erecting,  at  an  expense  of  more  than  two  thousand 
dollars,  a  new  one  in  its  stead.  So  far  as  the  materials  ob- 
tained from  the  old  mill  were  of  value,  and  would  answer, 
they  were  put  into  the  new.  While  the  plaintiff  may,  possibly, 
have  lost  some  immediate  profits,  before  the  date  of  his  writ, 
by  his  expulsion  from  the  mill,  he  has  largely  gained  in  the 
increased  value  of  his  estate.  His  damages,  therefore,  can 
be  only  nominal. 

Judgment  for  the  plaintiff  for  one  dollar. 

1  Only  so  much  of  the  case  as  relates  to  the  question  of  damages  is 
given. 


296  CASES  ON  DAMAGES. 

MAYO  v.  SPRINGFIELD. 

Massachusetts,  1884.     138  Mass.  70. 

Field,  J.  The  gist  of  the  plaintiff's  action  is  the  breaking 
and  entering  of  his  close.  The  other  averments  of  the  dec- 
laration only  affect  the  damages.  Manners  v.  Haverhill,  135 
Mass.  165. 

The  measure  of  damages  is  the  injury  to  the  plaintiff's 
estate  caused  by  the  trespass  ;  and  when,  as  in  this  case,  the 
damages  are  occasioned  by  placing  upon  the  land  "  a  large 
quantity  of  earth,"  the  damages  are  not  necessarily  what  it 
would  cost  the  plaintiff  to  remove  the  earth  from  the  land. 
Holt  v.  Sargent,  15  Gray,  97.  In  determining  the  extent  of 
the  injury  to  the  plaintiff's  land,  the  court  had  a  right  to  con- 
sider the  benefits,  if  any,  arising  from  placing  the  earth  upon 
the  land.  An  allowance  for  such  benefits  is  not  in  the  nature 
of  recoupment  or  set-off,  but  a  method  of  determining  the 
actual  damages  sustained.  Luther  v.  Winnisimmet  Co.,  9 
Cush.  171  ;  Howes  v.  Grush,  131  Mass.  207  ;  Jones  v.  Gooday. 
8  M.  &  W.  146. 

Upon  the  facts  found  by  the  assessor,  the  court  was  war- 
ranted in  entering  judgment  for  the  smaller  sum. 

Judgment  affirmed. 

PERROTT  v.   SHEARER. 

Michigan,  1868.     17  Mich.  48. 

Cooley,  C.J.1  The  plaintiff  in  error,  as  sheriff  of  the 
county  of  Bay,  by  virtue  of  a  writ  of  attachment  against  the 
goods  and  chattels  of  Henry  H.  Swinscoe,  levied  upon  a  stock 
of  goods  which  Shearer  claimed  as  assignee  of  the  firm  of 
Swinscoe  &  Son,  composed  of  said  Henry  H.  Swinscoe  and 
George  E.  Swinscoe.  .  .  . 

1  Part  of  the  opiuion  is  omitted. 


PERROTT   v.   SHEARER.  297 

The  principal  question  in  the  case  springs  from  the  fact  that 
the  goods,  while  under  the  control  of  the  defendant,  in  pursu- 
ance, as  the  plaintiff  claimed,  of  said  attachment  levy,  were 
accidentally  destroyed  by  fire.  The  plaintiff,  it  appears,  held, 
at  the  time,  insurance  policies  upon  them  to  their  full  value, 
and,  after  the  fire,  presented  to  the  insurance  companies 
proofs  of  the  loss,  and  received  pay  therefor.  Upon  this  state 
of  facts  it  was  claimed  by  defendant,  that  plaintiff's  posi- 
tion was  the  same  as  if  he  had  repossesed  himself  of  the 
goods  by  replevin  ;  and  that  he  was  entitled  to  recover 
damages  only  for  their  detention  up  to  the  time  of  the  fire. 
The  Circuit  Judge  held  differently,  and  instructed  the  jury  that 
the  plaintiff  was  entitled  to  recover  the  full  value  of  the  goods, 
and  he  hud  judgment  for  the  value  accordingly. 

It  certainly  strikes  one,  at  first,  as  somewhat  anomalous, 
that  a  party  should  be  in  position  to  legally  recover  of  two 
different  parties  the  full  value  of  goods  which  he  has  lost ; 
but  we  think  the  law  warrants  it  in  the  present  case,  and  that 
the  defendant  suffers  no  wrong  by  it.  He  is  found  to  be  a 
wrong-doer  in  seizing  the  goods,  and  he  cannot  relieve  him- 
self from  responsibility  to  account  for  their  full  value  except 
by  restoring  them.  He  has  no  concern  with  any  contract  the 
plaintiff  may  have  with  any  other  party  in  regard  to  the  goods, 
and  his  rights  or  liabilities  can  neither  be  increased  nor 
diminished  by  the  fact  that  such  a  contract  exists.  He  has 
no  equities  as  against  the  plaintiff  which  can  entitle  him, 
under  any  circumstances,  to  an  assignment  of  the  plaintiffs 
policies  of  insurance.  The  accidental  destruction  of  the 
goods  in  his  hands  was  one  of  the  risks  he  run  when  the 
trespass  was  committed,  and  we  do  not  see  how  the  law  can 
relieve  him  from  the  consequences.  If  the  owner,  under 
such  circumstances,  keeps  his  interest  insured,  he  cannot  be 
held  to  pay  the  money  expended  for  that  purpose  for  the 
interest  of  the  trespasser.  He  already  has  a  right  of  action 
for  the  full  value  of  the  goods,  and  he  does  not  give  that 
away  by  taking  a  contract  of  insurance.  For  the  latter  he 
pays  an  equivalent  in  the  premium,  and  is,  therefore,  entitled 


298  CASES   ON   DAMAGES. 

to  the  benefit  of  it,  if  any  benefit  shall  result.  The  trespasser 
pays  nothing  for  it,  and  is,  therefore,  justly  entitled  to  no 
return.  The  case,  we  think,  is  within  the  principle  of  Merrick  v. 
Brainard,  38  Barb.  574,  which  appears  to  us  to  have  been 
correctly  decided.  The  plaintiff  recovers  of  the  defendant  for 
the  wrong  that  has  been  done  him  in  taking  his  goods  ;  and  he 
recovers  of  the  insurance  company  a  large  sum  for  a  small 
outlay,  because  such  payment  was  the  risk  they  assumed,  and 
for  which  they  were  fairly  compensated.  It  is  not  a  question 
of  importance  in  this  inquiry,  whether  the  act  of  the  defendant 
caused  the  loss  or  not :  his  equitable  claim  to  a  reduction  of 
damages,  if  he  could  have  any,  would  spring  from  the  fact 
that  the  plaintiff  recovers  pay  for  his  propert}-  twice  ;  but  the 
answer  to  this  is,  that  he  recovers  but  once  for  the  wrong  done 
him,  and  he  receives  the  insurance  money  upon  a  contract  to 
which  the  defendant  is  in  no  way  privy,  and  in  respect  to 
which  his  own  wrongful  act  can  give  him  no  equities. 

We  discover  no  error  in  the  record,  and  the  judgment  must 
be  affirmed,  with  costs. 


BROSNAN  v.   SWEETSER. 
Indiana,  1891,     127  Ind.  1. 

Olds,  C.J.1  This  is  an  action  by  the  appellee  against  the 
appellants  for  damages  resulting  from  injuries  sustained  by 
the  appellee  in  falling  through  a  trap-door  in  the  store-room 
of  appellants. 

It  is  contended  that  the  court  erred  in  permitting  Drs. 
Garver  and  Hodges  to  testify  as  to  the  value  of  the  services 
of  the  nurses  who  took  care  of  the  appellee  while  disabled  by 
reason  of  the  injury.  Our  attention  is  not  called  to  any  evi- 
dence showing  such  a  state  of  facts  as  would  even  preclude 
the  nurses  in  this  case  from  recovering  the  value  of  their 
services  from  the  appellee  ; 2  but  if  such  facts  did  exist,  and 

1  Part  of  the  opinion  is  omitted. 

2  The  nurses  in  this  case  appear  to  have  been  the  brother  and  the  sister 
of  the  appellee. 


ELMER  v.  FESSENDEN.  299 

the  question  was  properly  presented,  the  evidence  was  com- 
petent. One  element  of  damage  is  the  reasonable  value  of 
properly  nursing  and  caring  for  the  injured  person.  If  this 
be  done  by  some  good  friend  or  member  of  the  family  who 
donate  their  services,  that  is  the  good  fortune  of  the  appellee, 
and  a  matter  with  which  the  persons  liable  have  no  concern. 
If  she  had  paid  ten  times  the  true  value  of  such  services,  she 
could  only  have  recovered  what  such  services  were  reasonably 
worth.  Her  contract  or  liability  has  nothing  to  do  with  the 
liability  of  the  appellants.  If  they  are  liable  for  damages  on 
account  of  the  injuries,  they  are  liable  for  the  reasonable 
value  of  the  necessary  services  of  a  nurse,  the  same  as  the 
services  of  a  physician  or  surgeon.  Pennsylvania  Co.  v. 
Marion,  104  lud.  2'dd  ;  bummers  v.  Tarney,  123  Ind.  560. 

Judgment  affirmed.* 


ELMER  v.  FESSENDEN. 

Massachusetts,  1891.     154  Mass.  427. 

Tort  against  a  physician  for  slander  in  falsely  telling  work- 
men of  the  plaintiff,  who  was  a  silk  manufacturer,  that  there 
was  arsenic  in  the  silk  furnished  by  him  to  them  to  work 
with,  and  thereby  causing  them  to  leave  his  employment.2 

Holmes,  J.  The  plaintiff  claimed,  as  part  of  his  damages, 
trouble  which  he  was  put  to  necessarily,  in  order  to  determine 
whether  there  was  arsenic  in  his  silk  ;  and  to  protect  his  em- 
ployees.    He  estimated  the  amount  at  $5.24  per  day,  and  the 

1  "  Nor  did  the  court  commit  any  error  in  refusing  to  allow  her  to  recover 
for  moneys  paid  out  or  incurred  by  her  brother  in  her  behalf  for  medical 
attendance  and  medicines  in  consequence  of  such  injury.  Tt  may  he  that 
the  physician  so  in  attendance  and  the  person  so  furnishing  the  medi- 
cines, respectively,  might  have  recovered  therefor,  as  for  necessaries  ;  but 
those  things  gave  her  no  right  of  action  for  moneys  voluntarily  paid  and 
liabilities  voluntarily  incurred  by  her  brother  or  her  father.  Taylor  v.  Hill, 
86  Wis.  105."  Cassoday,  J.,  in  Peppercorn  v.  Black  River  Falls,  61  N.  W. 
79  (Wis.  1894). 

2  Part  of  the  case  is  omitted. 


300  CASES   ON  DAMAGES. 

jury  allowed  him  for  eight  days  at  that  rate.  No  exception 
was  taken  to  the  ruling  allowing  a  recovery  for  this  item,  but 
instructions  were  excepted  to  which  allowed  the  plaintiff  to 
recover  irrespective  of  the  state  of  things  between  himself  and 
a  company  in  whose  general  employ  he  was,  and  to  which  he 
was  accountable  for  the  time  spent  as  stated.  That  company 
had  told  the  plaintiff  that  they  should  make  no  deduction  from 
his  salary  because  of  the  lost  time.  This  ruling  was  correct. 
The  plaintiff  does  not  recover  because  he  was  compelled  to 
break  his  contract  with  the  company,  but  for  his  own  time 
aud  trouble,  irrespective  of  his  contracts.  His  cause  of  action 
for  that  could  not  be  affected  if  a  stranger  saw  fit  to  pay  him 
for  the  same  time,  either  by  way  of  gift  or  upon  consideration. 

Exceptions  overruled. 


Section  3.  —  Damages  to   Owner  of  Limited  Interest. 

ARMORY  v.  DELAMIRIE. 

Middlesex  Assizes,  coram  Pratt,  C.  J. ,  1722.     1  Stra.  505. 

The  plaintiff  being  a  chimney-sweeper's  boj-  found  a  jewel 
and  carried  it  to  the  defendant's  shop  (who  was  a  goldsmith) 
to  know  what  it  was,  and  delivered  it  into  the  hands  of  the 
apprentice,  who,  under  pretence  of  weighing  it,  took  out  the 
stones,  and  calling  to  the  master  to  let  him  know  it  came  to 
three  halfpence,  the  master  offered  the  boy  the  mone}',  who 
refused  to  take  it,  and  insisted  to  have  the  thing  again  ;  where- 
upon the  apprentice  delivered  him  back  the  socket  without 
the  stones.  And  now  in  trover  against  the  master  these 
points  were  ruled  :  — 

1.  That  the  finder  of  a  jewel,  though  he  does  not  b}'  such 
finding  acquire  an  absolute  propert}'  or  ownership,  3*et  he  has 
such  a  property  as  will  enable  him  to  keep  it  against  all  but 
the  rightful  owner,  and  consequently  may  maintain  trover. 

2.  That  the  action  well  lay  against  the  master,  who  gives  a 


CLARIDGE  v.  SOUTH  STAFFORDSHIRE  TRAMWAY.      301 

credit  to  bis  apprentice,  and  is  answerable  for  bis  neglect. 
Jones  v.  Hart,  Salk.  441,  Cor.  Holt,  C.J. ;  Mead  v.  Ha- 
mond  ;  G rammer  v.  Nixon,  1  Stra.  653. 

3.  As  to  the  value  of  the  jewel,  several  of  the  trade  were 
examined  to  prove  what  a  jewel  of  the  finest  water  that  would 
fit  the  socket  would  be  worth  ;  and  the  Chief  Justice  directed 
the  jury,  that  unless  the  defendant  did  produce  the  jewel,  and 
show  it  not  to  be  of  the  finest  water,  they  should  presume  the 
strongest  against  him,  and  make  the  value  of  the  best  jewels 
the  measure  of  their  damages  :  which  they  accordingly  did. 


CLARIDGE  v.    SOUTH   STAFFORDSHIRE 
TRAMWAY. 

Queen's  Bench  Division,  1892.     [1892]  1  Q.  B.  422. 

Hawkins,  J.1  I  am  of  opinion  that  this. appeal  must  be 
dismissed.  The  appeal  is  with  reference  to  the  measure  of 
the  damages  recoverable  by  the  plaintiff  for  an  injury  to  a 
horse  and  carriage  caused  by  the  negligence  of  the  defend- 
ants. The  carriage  was  the  property  of  the  plaintiff;  the 
horse  was  only  in  the  possession  of  the  plaintiff  as  bailee. 
The  judge  entered  judgment  for  the  plaintiff  for  the  damage 
to  the  carriage,  but  held  that  he  could  not  recover  for  the 
injury  to  the  horse.  The  question  is  whether  he  was  right 
in  so  holding.  Now,  it  seems  perfectly  clear  that  the  plain- 
tiff was  under  no  liability  to  his  bailor  for  the  damage  to  the 
horse,  for  he  was  not  an  insurer  and  he  had  not  been  guilty 
of  any  negligence.  But  it  has  been  contended  that,  notwith- 
standing that  he  was  under  no  such  liability,  he  is  never- 
theless entitled  to  recover  the  amount  of  the  depreciation 
because  he  was  in  possession  of  the  horse  at  the  time  of  the 
accident,  though  it  is  admitted  that  having  recovered  such 
damages  he  would  hold  them  as  trustee  for  the  bailor.  I 
cannot  accede  to  that  view.  It  is  true  that  if  a  man  is  in 
1  Wills,  J.,  delivered  a  concurring  opinion. 


302  CASES  ON   DAMAGES. 

possession  of  a  chattel,  and  his  possession  is  interfered  with, 
he  may  maintain  an  action,  but  only  for  the  injury  sustained 
by  himself.  The  right  to  bring  an  action  against  the  wrong- 
doer is  one  thing ;  the  measure  of  the  damages  recoverable 
in  such  action  is  another.  And  here  the  plaintiff  has  suf- 
fered no  loss  at  all.  It  was  contended  that  though  either 
the  bailee  or  the  bailor  might  sue,  only  one  action  could  he 
brought,  and  that  if  the  bailee  recovered  first  the  bailor's 
right  of  action  was  barred,  and  the  remedy  of  the  bailor  in 
such  case  was  against  his  bailee  as  for  money  had  and  re- 
ceived to  his  use.  I  do  not  agree  with  that  contention.  If 
both  the  bailee  and  the  bailor  have  suffered  damage  by  the 
wrongful  act  of  a  third  part}-,  I  think  that  each  may  bring  a 
separate  action  for  the  loss  sustained  by  himself.  I  canuot 
understand  why  a  bailee  should  be  allowed  to  recover  dam- 
ages beyond  the  extent  of  his  own  loss  simply  because  he 
happened  to  be  in  possession. 

Appeal  dismissed;  leave  to  appeal  refused} 


BREWSTER  y.   WARNER. 

Massachusetts,  1883.     136  Mass.  57. 

Holmes.  J.  The  modern  cases  follow  the  ancient  rule, 
that  a  bailee  can  recover  against  a  stranger  for  taking  chat- 
tels from  his  possession.  Shaw  v.  Kaler,  106  Mass.  448; 
Swire  v.  Leach,  18  C.  B.  (n.  s.)  479.  Sec  Year  Book  48 
Edw.  III.  20,  pi.  8  ;  20  Hen.  VII.  5,  pi.  15  ;  2  Roll.  Abr.  569, 
Trespass,  P.  pi.  5  ;  Nicolls  v.  Bastard,  2  Cr.,  M.  &  R.  659, 
660.  And  as  the  bailee  is  no  longer  answerable  to  his  bailor 
for  the  loss  of  goods  without  his  fault,  his  right  to  recover 
must  stand  upon  his  possession,  in  these  da}-s  at  least,  if  it 
has  not  always  done  so.  But  possession  is  as  much  pro- 
tected against  one  form  of  trespass  as  another,  and  will 
support  an  action  for  damage  to  property,  as  well  as  one  for 
wrongfully  taking  or  destroying  it  No  distinction  has  been 
i  This  case  was  overruled  by  The  Winkfield,  [1902]  Pr.  42. 


BREWSTER   v.   WARNER.  303 

recognized  by  the  decisions.  Rooth  v.  Wilson,  1  B.  &  Aid. 
59  ;  Croft  v.  Alison,  4  B.  &  Aid.  590  ;  Johnson  v.  Holyoke, 
105  Mass.  80.  The  ruling  requested  was  obviously  wrong, 
as  it  denied  all  right  of  action  to  the  plaintiff,  and  was  not 
confined  to  the  quantum  of  damages. 

Even  if  the  question  before  us  were  whether  the  plaintiff 
could  recover  full  damages,  his  right  to  do  so  could  not  be 
denied  as  matter  of  law.  A  distinction  might  have  been 
attempted,  to  be  sure,  under  the  early  common  law.  For, 
although  the  bailee's  right  was  undoubted  to  recover  full 
damages  for  goods  wrongfully  taken  from  him,  this  was 
always  accounted  for  by  his  equally  undoubted  responsibility 
for  their  loss  to  his  bailor,  and  there  is  no  satisfactory 
evidence  of  any  such  strict  responsibility  for  damage  to 
goods  which  the   bailee  was  able  to  return   in  specie. 

But  if  this  reasoning  would  ever  have  been  correct,  which 
is  not  clear,  it  can  no  longer  apply  when  the  responsibility  of 
bailees  is  the  same  for  damage  to  goods  as  for  their  loss,  and 
when  the  ground  of  their  recovery  for  either  is  simply  their 
possession.  Any  principle  that  permits  a  bailee  to  recover 
full  damages  in  the  one  case,  must  give  him  the  same  right 
in  the  other.  But  full  damages  have  been  allowed  for  taking 
goods,  in  many  modern  cases,  although  the  former  responsi- 
bilit}'  over  for  the  goods  has  disappeared,  and  has  been 
converted  by  misinterpretation  into  the  now  established 
responsibility  for  the  proceeds  of  the  action  beyond  the 
amount  of  the  bailee's  interest.  I^-le  v.  Barker,  5  Binn. 
457;  7  Cowen,  681,  n.  (a);  White  v.  Webb,  15  Conn.  302; 
Ullman  v.  Barnard,  7  Gray,  554;  Adams  v.  O'Connor,  100 
Mass.  515,  518;  Swire  v.  Leach,  18  C.  B.  (n.  s.)  492. 
The  latter  doctrine  has  been  extended  to  insurance  by 
bailees.  De  Forest  v.  Fulton  Ins.  Co.,  1  Hall,  84,  91,  110, 
116,  132;  Crompton,  J.,  in  Waters  v.  Monarch  Ins.  Co.,  25 
L.  J.  (n.  s.)  Q.  B.  102,  106. 

If  the  bailee's  responsibility  over  in  this  modern  form  is 
not  sufficient  to  make  it  safe  in  all  cases  to  recognize  his 
right  to  recover  full  damages,  even  where  it  was  formerly 


304  CASES   ON  DAMAGES. 

undoubted,  at  least  it  applies  as  well  to  recoveries  for  harm 
done  to  property  as  it  does  to  those  for  taking.  Rindge  v. 
Coleraine,  11  Gray,  157,  162.  And  if  full  damages  are  ever 
to  be  allowed,  as  it  is  settled  that  they  may  be,  they  should 
be  recovered  in  the  present  case,  where  the  plaintiff  appears 
to  have  made  himself  debtor  for  the  necessary  repairs  with 
the  bailor's  assent.  Johnson  v.  Holyoke,  ubi  supra.  It  is 
not  necessaiy  to  consider  what  steps  might  be  taken  if  the 
bailor  should  seek  to  intervene  to  protect  his  interest. 

Exceptions  overruled. 


JOHNSON  v.  STEAR. 
Common  Pleas,  1863.     15  C.  B.  (x.  s.)  330. 

Erle,  C.J.,  now  delivered  the  judgment  of  the  majority 
of  the  court. 

In  trover  by  the  assignee  under  the  bankruptcy  of  one 
Cumming,  the  facts  were  that  dimming  had  deposited  brandy 
lying  in  a  dock  with  one  Stear,  by  delivering  to  him  the  dock- 
warrant,  and  had  agreed  that  Stear  might  sell,  if  the  loan 
was  not  repaid  on  the  29th  of  January  ;  that,  on  the  28th  of 
Januaiy,  Stear  sold  the  brandy,  and  on  the  29th  handed  over 
the  dock-warrant  to  the  vendees,  who  on  the  30th  took  actual 
possession. 

Upon  these  facts,  the  questions  are,  —  first,  was  there  a 
conversion?  and,  if  yes,  —  secondly,  what  is  the  measure 
of  damages? 

To  the  first  question  our  answer  is  in  the  affirmative.  The 
wrongful  sale  on  the  28th,  followed  on  the  29th  by  the  deliv- 
eiy  of  the  clock-warrant  in  pursuance  thereof,  was,  we  think, 
a  conversion.  The  defendant  wrongfulby  assumed  to  be 
owner  in  selling  ;  and  although  the  sale  alone  might  not  be  a 
conversion,  }'et,  by  delivering  over  the  dock-warrant  to  the 
vendees  in  pursuance  of  such  sale,  he  interfered  with  the 
right  which  Gumming  had  of  taking  possession  on  the  29th 


JOHNSON  v.   STEAR.  305 

if  he  repaid  the  loan ;  for  which  purpose  the  dock-warrant 
would  have  been  an  important  instrument.  We  decide  for 
the  plaintiff  on  this  ground  ;  and  it  is  not  necessary  to  con- 
sider the  other  grounds  on  which  he  relied  to  prove  a  conver- 
sion.    Then  the  second  question  arises. 

The  plaintiff  contends  that  he  is  entitled  to  the  full  value 
of  the  goods  sold  by  the  defendant,  without  any  deduction, 
on  the  ground  that  the  interest  of  the  defendant  as  bailee 
ceased  when  he  made  a  wrongful  sale,  and  that  therefore  he 
became  liable  to  all  the  damages  which  a  mere  wrong-doer 
who  had  wilfully  appropriated  to  himself  the  property  of 
another  without  any  right  ought  to  pay.  But  we  are  of  opin- 
ion that  the  plaintiff  is  not  entitled  to  the  full  value  of  the 
goods.  The  deposit  of  the  goods  in  question  with  the  de- 
fendant to  secure  repayment  of  a  loan  to  him  on  a  given  day, 
with  a  power  to  sell  in  case  of  default  on  that  day,  created 
an  interest  and  a  right  of  property  in  the  goods  which  was 
more  than  a  mere  lien  ;  and  the  wrongful  act  of  the  pawnee 
did  not  annihilate  the  contract  between  the  parties,  nor  the 
interest  of  the  pawnee  in  the  goods  under  that  contract. 

It  is  clear  that  the  actual  damage  was  merely  nominal. 
The  defendant  by  mistake  delivered  over  the  dock-warrant  a 
few  hours  only  before  the  sale  and  delivery  by  him  would 
have  been  lawful ;  and  by  such  premature  delivery  the  plain- 
tiff did  not  lose  anything,  as  the  bankrupt  had  no  intention 
to  redeem  the  pledge  by  paying  the  loan. 

If  the  plaintiffs  action  had  been  for  breach  of  contract  in 
not  keeping  the  pledge  till  the  given  day,  he  would  have  boon 
entitled  to  be  compensated  for  the  loss  he  had  really  sus- 
tained, and  no  more  ;  and  that  would  be  a  nominal  sum  only. 
The  plaintiffs  action  here  is  in  name  for  the  wrongful  con- 
version ;  but,  in  substance,  it  is  the  same  cause  of  action  ; 
and  the  change  of  the  form  of  pleading  ought  not  in  reason 
to  affect  the  amount  of  compensation  to  be  paid. 

There  is  authority  for  holding,  that,  in  measuring  the  dam- 
ages to  be  paid  to  the  pawnor  by  the  pawnee  for  a  wrongful 
conversion  of  the  pledge,  the  interest  of  the  pawnee  in  the 

2j 


306  CASES  ON  DAMAGES. 

pledge  ought  to  be  taken  into  the  account.  On  this  principle 
the  damages  were  measured  in  Chinery  v.  Viall,  5  Hurlst.  & 
N.  288.  There,  the  defendant  had  sold  sheep  to  the  plain- 
tiff ;  and,  because  there  was  delay  in  the  payment  of  the 
price  by  the  plaintiff,  the  defendant  resold  the  sheep.  For 
this  wrong  the  court  held  that  trover  lay,  and  that  the  plain- 
tiff was  entitled  to  recover  damages;  but  that,  in  measuring 
the  amount  of  those  damages,  although  the  plaintiff  was  enti- 
tled to  be  indemnified  against  any  loss  he  had  really  sustained 
by  the  resale,  yet  the  defendant  as  an  unpaid  vendor  had  an 
interest  in  the  sheep  against  the  vendee  under  the  contract  of 
sale,  and  might  deduct  the  price  due  to  himself  from  the 
plaintiff  from  the  value  of  the  sheep  at  the  time  of  the 
conversion. 

In  Story  on  Bailments,  §  315,  it  is  said :  "  If  the  pawnor, 
in  consequence  of  any  default  or  conversion  by  the  pawnee, 
has  recovered  back  the  pawn  or  its  value,  still  the  debt  re- 
mains and  is  recoverable,  unless  in  such  prior  action  it  has 
been  deducted :  and  it  seems  that,  b}'  the  common  law,  the 
pawnee  in  such  action  for  the  value  has  a  right  to  have  the 
amount  of  his  debt  recouped  in  damages."  For  this  he  cites 
Jarvis  v.  Rogers,  15  Mass.  R.  389.  The  principle  is  also 
exemplified  in  Brierly  v.  Kendall,  17  Q.  B.  937.  There, 
although  the  form  of  the  security  was  a  mortgage  and 
not  a  pledge,  and  although  the  action  was  trespass  and 
not  trover,  yet  the  substance  of  the  transaction  was  in 
close  analogy  with  the  present  case.  There  was  a  loan  by 
the  defendant  to  the  plaintiff,  secured  by  a  bill  of  sale 
of  the  plaintiff's  goods,  in  which  was  a  reservation  to  the 
plaintiff  of  a  right  to  the  possession  of  the  goods  till  he 
should  make  default  in  some  payment.  Before  any  default, 
the  defendant  took  the  goods  from  the  plaintiff,  and  sold 
them.  For  this  wrong  he  was  liable  in  trespass ;  but  the 
measure  of  damages  was  held  to  be,  not  the  value  of  the 
goods,  but  the  loss  which  the  plaintiff  had  really  sustained 
by  being  deprived  of  the  possession.  The  wrongful  act  of 
the  defendant  did  not  annihilate  his  interest  in  the  goods  un- 


JOHNSON  v.  STEAR.  307 

der  the  bill  of  sale  ;  and  such  interest  was  to  be  considered 
in  measuring  the  extent  of  the  plaintiff's  right  to  damages. 

On  these  authorities  we  hold  that  the  damages  due  to  the 
plaintiff  for  the  wrongful  conversion  of  the  pledge  by  the  de- 
fendant, are  to  be  measured  by  the  loss  he  has  really  sus- 
tained ;  and  that,  in  measuring  those  damages,  the  interest 
of  the  defendant  in  the  pledge  at  the  Lime  of  the  conversion 
is  to  be  taken  into  the  account.  It  follows  that  the  amount 
is  merely  nominal,  and  therefore  that  the  verdict  for  the 
plaintiff  should  stand,  with  damages  40s. 

Williams,  J.1  I  agree  with  the  rest  of  the  court  that 
there  was  sufficient  proof  of  a  conversion  ;  but  I  cannot 
agree  with  my  Lord  and  my  learned  brothers  as  to  the  other 
point,  for  I  think  the  damages  ought  to  stand  for  the  full 
value  of  the  brandies.  The  general  rule  is  indisputable,  that 
the  measure  of  damages  in  trover  is  the  value  of  the  prop- 
erty at  the  time  of  the  conversion.  To  this  rule  there  are 
admitted  exceptions.  There  is  the  well-known  case  of  a  re- 
delivery of  the  goods  before  action  brought,  which,  though  it 
cannot  cure  the  conversion,  yet  will  go  in  mitigation  of  dam- 
ages. Another  exception  is  to  be  found  in  cases  where  the 
plaintiff  has  only  a  partial  interest  in  the  thing  converted. 
Thus,  if  one  of  several  joint-tenants  or  tenants  in  common 
alone  brings  an  action  against  a  stranger,  he  can  recover  only 
the  value  of  his  share.  80,  if  the  plaintiff,  though  solely 
entitled  to  the  possession  of  the  thing  converted,  is  entitled 
to  an  interest  limited  in  duration,  he  can  only  recover  dam- 
ages proportionate  to  such  limited  interest,  in  an  action 
against  the  person  entitled  to  the  residue  of  the  property 
(though  he  may  recover  the  full  value  in  an  action  against  a 
stranger).  The  case  of  Brierly  v.  Kendall,  which  my  Lord 
has  cited,  is  an  example  of  this  exception.  There,  the  goods 
had  been  assigned  by  the  plaintiff  to  the  defendant  by  a  deed 
the  terms  of  which  operated  as  a  re-demise,  and,  since  the 
defendant's  quasi  estate  in  remainder  was  not  destroyed  or 
forfeited  by  his  conversion  of  the  quasi  particular  estate,  the 
1  Part  of  this  opinion  ia  omitted. 


308  CASES  ON  DAMAGES. 

plaintiff,  as  owner  of  that  estate,  was  only  entitled  to  recover 
damages  in  proportion  to  the  value  of  it. 

With  respect,  however,  to  liens,  the  rule,  I  apprehend,  is 
well  established,  that,  if  a  man  having  a  lien  on  goods  abuses 
it  by  wrongfully  parting  with  them,  the  lien  is  annihilated, 
and  the  owner's  right  to  possession  revives,  and  he  may  re- 
cover their  value  in  damages  in  an  action  of  trover.  With 
reference  to  this  doctrine,  it  may  be  useful  to  refer  to  Story 
on  Bailments.  In  §  325,  that  writer  says :  "  The  doctrine  of 
the  common  law  now  established  in  England,  after  some 
diversity  of  opinion,  is,  that  a  factor  having  a  lien  on  goods 
for  advances  or  for  a  general  balance,  has  no  right  to  pledge 
the  goods,  and  that,  if  he  does  pledge  them,  he  conveys  no 
title  to  the  pledgee.  The  effect  of  this  doctrine  is,  in  Eng- 
land, to  deny  to  the  pledgee  any  right  in  such  a  case  to  retain 
the  goods  even  for  the  advances  or  balance  due  to  the  factor. 
In  short,  the  ti'ansfer  is  deemed  wholly  tortious  ;  so  that  the 
principal  may  sue  for  and  recover  the  pledge,  without  making 
any  allowance  or  deduction  whatever  for  the  debts  due  by 
him  to  the  factor."  After  stating  that  the  English  legislature 
had  at  length  interfered,  the  learned  author  continues  in 
§  326:  "In  America,  the  general  doctrine  that  a  factor 
cannot  pledge  the  goods  of  his  principal,  has  been  repeat- 
edly recognized.  But  it  does  not  appear  as  yet  to  have  been 
carried  to  the  extent  of  declaring  the  pledge  altogether  a  tor- 
tious proceeding,  so  that  the  title  is  not  good  in  the  pledgee 
even  to  the  extent  of  the  lien  of  the  factor,  or  so  that  the 
principal  may  maintain  an  action  against  the  pledgee  with- 
out discharging  the  lien,  or  at  least  giving  the  pledgee  a  right 
to  recover  the  amount  of  the  Hen  in  the  damages."  But,  in 
the  6th  edition,  by  Mr.  Bennett,  it  is  added:  "Later  decis- 
ions have,  however,  fully  settled  the  law,  that  a  pledge  by  a 
factor  of  his  principal's  goods  is  wholly  tortious,  and  the 
owner  ma}T  recover  the  whole  value  of  the  pledgee,  without 
any  deduction  or  recoupment  for  his  claim  against  the 
factor."  And  1  may  mention  that  I  have  reason  to  believe 
this  rule  as  to  liens  was  acted  upon  a  few  days  ago  in  the 


FOWLER   v.   GILMAN.  309 

Court  of  Queen's  Bench.     [Siebel  v.  Springfield,  9  Law  T. 
(n.  s.)  325.]  .  .  . 

It  should  seem,  then,  that  the  bailment  in  the  present  case 
was  terminated  by  the  sale  before  the  stipulated  time  ;  and, 
consequently,  that  the  title  of  the  plaintiff  to  the  goods  be- 
came as  free  as  if  the  bailment  had  never  taken  place.  If  he 
had  brought  an  action  against  an  innocent  vendee,  the  passage 
I  have  already  cited  from  Story,  §  325,  demonstrates  that  he 
might  have  recovered  the  absolute  value  of  the  goods  as 
damages.  Why  should  lie  be  in  a  worse  condition  in  respect 
of  an  action  against  the  pledgee  who  has  violated  the  con- 
tract of  pledge  ? 

The  true  doctrine,  as  it  seems  to  me,  is,  that,  whenever 
the  plaintiff  could  have  resumed  the  property,  if  he  could  lay 
his  hands  on  it,  and  could  have  rightfully  held  it  when  recov- 
ered as  the  full  and  absolute  owner,  he  is  entitled  to  recover 
the  value  of  it  as  damages  in  the  action  of  trover,  which 
stands  in  the  place  of  such  resumption. 

In  the  present  case,  I  think  it  plain  that  the  bailment  hav- 
ing been  terminated  by  the  wrongful  sale,  the  plaintiff  might 
have  resumed  possession  of  the  goods  freed  from  the  bail- 
ment, and  might  have  held  them  rightfully  when  so  re- 
sumed, as  the  absolute  owner,  against  all  the  world.  And  I 
therefore  think  he  ought  to  recover  the  full  value  of  them  in 
this  action. 

Nor  can  I  see  any  injustice  in  the  defendant's  being  thus 
remitted  to  his  unsecured  debt,  because  his  lien  has  been  for- 
feited by  his  own  violation  of  the  conditions  on  which  it  was 
created. 

Bale  absolute  to  reduce  the  damages  tc  40s. 


FOWLER  v.  GILMAN. 

Massachusetts,  1847.     13  Met.  267. 

Trover  for  a  wagon.    At  the  trial  in  the  Court  of  Common 
Pleas,  before  Washburn,  J.,  there  was  evidence  tending  to 


310  CASES   ON   DAMAGES. 

show  that  one  Orfut,  under  whom  the  defendant  claimed  title  to 
the  wagon,  bargained  the  same  to  Henry  Fowler  under  whom 
the  plaintiff  claimed  it,  the  bargain  being  that  the  wagon 
should  be  said  Henry's  upon  his  paying  a  certain  price ;  that 
Orfut  sold  his  interest  in  the  wagon  to  the  defendant,  who 
had  knowledge  of  the  aforesaid  bargain,  and  that  said  Henry 
sold  his  interest  in  the  wagon' to  the  plaintiff;  that  said  Henrj' 
made  several  payments  towards  the  agreed  price ;  and  that 
when  Orfut  sold  his  interest  to  the  defendant,  a  balance  of 
$14  was  due  towards  the  contract  price  for  the  wagon. 

It  was  also  in  evidence  that,  while  the  wagon  was  in  the 
defendant's  possession,  the  plaintiff  tendered  to  him  the  afore- 
said sum  of  $14,  and  demanded  the  wagon  of  him,  and  that 
he  refused  to  accept  the  sum  tendered,  denying  the  plaintiffs 
title.  No  money  was  paid  into  court,  and  there  was  no  evi- 
dence that  the  defendant  demanded  the  $14  of  the  plaintiff, 
after  the  tender.  The  plaintiff's  counsel  asked  the  judge  to 
instruct  the  jury  that,  in  fixing  the  amount  of  damages,  if 
they  should  find  for  the  plaintiff,  they  should  not  deduct  the 
$14  from  the  estimated  value  of  the  wagon.  The  judge  so 
instructed  the  jury,  who  found  a  verdict  for  the  plaintiff  for 
the  full  value  of  the  wagon.  The  defendant  alleged  excep- 
tions to  the  judge's  instructions. 

Shaw,  C.J.  It  appears  to  us  that  the  jury  should  have 
been  instructed  to  deduct  the  fourteen  dollars  from  the  value 
of  the  wagon,  in  case  of  a  verdict  for  the  plaintiff.  No  doubt 
the  true  general  rule  of  damages,  in  trover,  is  the  value  of  the 
goods  at  the  time  of  conversion,  with  interest.  Kennedy  v. 
Whitwell,  4  Pick.  466.  This  rule  applies  where  the  plaintiff 
is  the  general  owner,  or  is  answerable  over  to  others.  But 
where  the  plaintiff  admits  that  the  defendant  has  a  lien  on 
the  property,  to  a  certain  amount,  that  amount  ma}*  be  de- 
ducted by  the  jury,  in  assessing  damages.  Green  v.  Farmer, 
4  Bur.  2214,  2223;  Chamberlin  v.  Shaw,  18  Pick.  283; 
Dresser  Manuf.  Co.  v.  Waterston,  3  Met.  9. 

It  is  to  be  taken  in  this  case,  and  the  plaintiff  by  his  ten- 
der has  admitted,  that  the  defendant  had  the  same  lien  on  the 


JACKSON  v.  TURRELL.  311 

wagon  which  Orfut  had  when  he  sold  his  interest  therein  to 
the  defendant,  namely,  a  lien  for  the  unpaid  balance  of  the 
price  which  Henry  Fowler  had  agreed  to  pay  for  the  wagon, 
before  it  should  become  his  property.  The  amount  of  that 
lien  is  agreed  to  have  been  fourteen  dollars. 

By  consent  of  parties,  the  verdict  may  be  amended  b}'  de- 
ducting fourteen  dollars  therefrom,  and  judgment  be  rendered 
on  the  verdict  so  amended.  Otherwise,  the  verdict  will  be 
set  aside,  and  a  new  trial  had  in  the  Court  of  Common  Pleas.1 


JACKSON  v.  TURRELL. 

New  Jersey,  1877.     39  N.  J.  L.  329. 

Dixon,  J.  Byard,  being  the  owner  of  a  plot  of  land  in 
Paterson,  mortgaged  it,  Feb.  2,  1871,  to  the  Washington 
Life  Insurance  Compan}-,  which  forthwith  duly  recorded 
the  mortgage.  Afterwards,  on  Feb.  6,  1872,  he  executed 
a  second  mortgage  thereon  to  Benson,  which  was  duly 
registered  and  then  assigned  to  the  plaintiff.  Subsequently 
Byard  placed  a  boiler  and  engine  upon  the  premises.  On 
Oct.  1,  1872,  he  conveyed  the  property  to  the  Paterson 
Silk  Manufacturing  Company,  which,  on  Jan.  16,  1873,  exe- 
cuted to  Miller  a  mortgage  upon  the  realt}',  and  a  separate 
mortgage,  securing  the  same  debt,  upon  the  boiler  and  engine 

1  "  Where  one  has  a  special  property  in  a  chattel,  or  a  lien  thereon,  he 
may  in  some  instances  recover  its  full  value  against  a  wrong-doer  who  ap- 
propriates it;  but  as  in  such  case  he  recovers  all  that  exceeds  his  own  spe- 
cial property  or  interest  therein,  for  the  benefit  of  the  general  owner, 
when  the  wrong-doer  is  not  a  third  person,  but  the  general  owner  himself, 
his  rights  are  fully  maintained,  and  circuity  of  action  is  avoided,  by  per- 
mitting him  to  recover  the  value  or  amount  of  his  special  property  or  in- 
terest alone.  He  is  thus  fully  indemnified,  the  balance  of  the  value  is 
with  those  entitled  to  it,  and  the  whole  controversy  is  thus  settled  in  a 
single  suit.  Chamberlin  v.  Shaw,  18  Pick.  278;  Fowler  v.  Gilman,  13 
Met.  267  ;  King  v.  Bangs,  120  Mass.  514  ;  Burdick  v,  Murray,  3  Vt.  302  ; 
Spoor  v.  Holland,  8  Weud.  445."  Devens,  J.,  in  White  v.  Allen,  133 
Mass.  423  (1882). 


312  CASES   ON  DAMAGES. 

as  chattels.  On  June  26,  1874,  Miller  sold  the  boiler  and 
engine,  under  his  chattel  mortgage,  to  the  defendant,  who 
immediate^  removed  them  from  the  premises.1  .   .  . 

The  next  objection  which  the  defendant  urges  is,  that  as 
there  was  a  prior  unsatisfied  mortgage  upon  the  premises,  the 
holder  of  which  had  not  waived  his  right  to  recover  of  the 
defendant  for  the  removal  of  the  fixtures,  the  plaintiff  being 
second  mortgagee  only,  could  not  maintain  an  action.  The 
ground  upon  which  a  mortgagee,  not  in  possession,  maj'  sup- 
port a  suit  at  law  against  the  mortgagor,  or  his  alienee,  for 
damages  resulting  from  acts  injurious  to  the  mortgaged 
premises,  has  not  been  settled  in  the  courts  of  this  State,  and 
the  adjudications  on  that  subject,  outside  of  New  Jersey,  are 
not  in  accord,  as  will  be  perceived  b}r  a  reference  to  the  cases 
already  cited.  Sometimes  the  mortgagee  has  been  deemed 
the  legal  owner  of  the  fee  as  against  the  mortgagor  and  his 
assigns,  and  so  entitled  to  hold  them  responsible  for  any  act, 
beyond  ordinary  use,  injurious  to  the  land,  to  the  full  extent 
of  that  injur}^ ;  and  in  Gooding  v.  Shea,  103  Mass.  360,  a 
third  mortgagee  was  regarded  as  standing  in  that  position,  and 
having  the  right  to  full  damages,  notwithstanding  the  fact 
that  the  prior  mortgagees  had  superior  rights  to  the  same 
damages,  unless  the  defendant  could  show  that  some  of  those 
prior  mortgagees  had  appropriated  the  damages  to  them- 
selves. See  also  Byrom  v.  Chapin,  113  Mass.  308,  and  King 
v.  Bangs,  120  Mass.  514. 

For  so  broad  a  claim  on  behalf  of  a  first  mortgagee,  techni- 
cal arguments,  deserving  of  serious  consideration,  may  per- 
haps be  adduced ;  but,  I  think,  no  subsequent  mortgagee  can 
establish  a  like  title.  The  reasons  which  support  the  claim 
of  the  first  mortgagee  defeat  the  claim  of  every  other  one,  to 
be  regarded  as  the  legal  owner  of  the  fee.  A  second  mort- 
gagee is,  in  law,  as  in  equity,  a  mere  lien-holder,  and  in  that 
character  alone  can  he  enforce  any  demand  for  redress. 

In  the  case  of  Van  Pelt  v.  McGraw,  4  Comst.  110,  the 
right  of  mortgagees  to  maintain  such  suits  is  declared  to  rest 

1  Part  of  the  opinion  is  omitted. 


MAYNARD   v.   PEASE.  313 

upon  the  principle  that  the  mortgage,  as  a  security,  has  been 
impaired,  and  the  damages,  it  is  said,  are  to  be  limited  to  the 
amount  of  injury  to  the  mortgage,  however  great  the  injury  to 
the  land  may  be.  Upon  this  principle  all  mortgagees  may 
stand,  and  it  is  recommended  by  the  consideration  that  it 
gives  to  each  party  actually  injured  a  remedy  measured  by 
the  injury  received.  It  obviates  some  technical  objections,  as 
well  as  some  practical  difficulties,  which  attend  the  rule  first 
adverted  to,  and  enables  the  courts  of  law  to  do  justice  by 
their  equitable  action  on  the  case.  Sometimes  the  facts  dis- 
closed at  the  trial  may  be  of  such  a  nature  as  to  make  it 
doubtful  whether  the  damages  should  go  to  the  plaintiff  or  to 
an  earlier  mortgagee  ;  but,  in  those  cases,  the  defendant  is 
placed  in  no  greater  danger  than  is  a  defendant  in  an  action 
upon  a  policy  of  insurance,  brought  by  the  owner,  where  the 
loss  is  made  payable  to  the  mortgagee,  and  the  language  of 
the  court  in  such  a  case  (Martin  v.  Franklin  Fire  Insurance 
Co.,  9  Vroom,  140,  145)  indicates  a  mode  in  which  all  inter- 
ests may  be  guarded  :  "  The  rights  of  the  (earlier)  mortgagee 
can  be  protected  by  payment  of  the  money  into  court,  and  the 
insurer  (defendant)  may  obtain  indemnity  against  any  subse- 
quent suit  by  the  (earlier)  mortgagee,  by  the  action  of  the 
court  into  which  the  money  is  paid  ;  if  actions  be  pending  at 
the  same  time  by  the  owner  and  the  mortgagee  (two  mort- 
gagees), the  court,  under  its  equitable  powers,  can  so  con- 
trol the  litigation  that  no  injustice  will  be  done." 


Section  4.  —  Higher  Intermediate   Value. 

MAYNARD  v.  PEASE. 

Massachusetts,  18G8.     09  .Mass.  555. 

Foster,  J.  This  is  a  bill  of  exceptions,  and  is  expressly 
stated  not  to  be  a  report  of  all  the  evidence.  The  plaintiff 
has  been  permitted  to  obtain  a  verdict  on  the  last  count  in 


314  CASES  ON  DAMAGES. 

his  amended  declaration,  which  alleges  that  the  defendants  as 
factors  received  his  tobacco,  and  agreed  that  they  would  not 
sell  it  at  less  than  fort}'  cents  by  the  pound,  and  would  hold 
it  subject  to  the  plaintiffs  order  until  they  should  sell  it  at  that 
price ;  but  that  they  did  not  sell  it  at  that  price,  nor  hold  it 
subject  to  his  order,  nor  obey  his  orders  in  relation  thereto ; 
and  that  he  ordered  them  to  forward  it  to  him  at  Boston, 
which  they  refused  to  do  ;  and  that  it  was  worth  forty  cents 
the  pound  at  the  time  when  they  so  refused  ;  and  that  they 
have  ever  since  refused  to  forward  it  or  deliver  it  to  him,  and 
he  has  wholly  lost  it.  The  verdict  of  the  juiy  establishes  these 
allegations. 

The  only  instructions  open  for  revision  relate  to  the  meas- 
ure of  damages.  The  presiding  judge  was  requested  to  rule 
that,  if  any  tobacco  was  sold  for  less  than  forty  cents  the 
pound  after  that  limit  was  imposed,  the  defendant  would  be 
responsible  in  damages  only  to  the  extent  of  the  fair  market 
value  at  the  time  it  was  sold.  This  he  declined  to  do,  except 
with  modifications ;  and  the  rule  of  damages  which  he  stated 
was,  in  substance,  that  the  plaintiff  might  recover  for  the  loss 
sustained  by  failure  to  obej'  his  orders,  not  exceeding  forty 
cents  the  pound  or  the  market  value  at  the  time  when  the 
return  of  the  tobacco  was  demanded  ;  but  that  the  increase  of 
market  value  up  to  forty  cents  the  pound  before  the  demand 
for  a  return  was  an  item  of  damage.  We  perceive  nothing  in 
this  rule  of  which  the  defendants  can  justly  complain.  The 
sale  of  the  tobacco  below  the  limit  of  their  authority  was  a 
breach  of  their  agreement,  and  the}'  cannot  restrict  the 
damages  to  the  market  value  at  that  precise  point  of  time. 
The  injury  may  have  consisted  not  in  selling  below  the  ex- 
isting market  price,  but  in  choosing  a  time  for  sale  when  the 
market  was  depressed,  and  a  favorable  price  could  not  be 
realized.  The  consignor  had  a  right  to  insist  that  the  goods 
should  be  held  until  his  price  could  be  obtained. 

We  do  not  find  it  necessary  to  decide  what  rule  of  damages 
is  absolutely  correct.  It  has  sometimes  been  said  that  the 
highest  market  price  before  action  brought  is  the  standard  ; 


BAKER   v.   DRAKE.  315 

at  others  that  the  highest  value  before  the  trial  may  be  awarded. 
It  is  safe  to  say  that  the  factor  is  at  least  liable  for  the  highest 
market  value  of  the  goods  within  a  reasonable  time  after  a  sale 
in  violation  of  instructions.  And  in  the  present  case  there 
can  be  no  doubt  that  the  time  when  the  plaintiff  demanded 
the  return  of  the  goods  was  soon  enough  after  the  defend- 
ants' disobedience  of  instructions  to  make  the  highest  market 
price  previous  to  that  date  a  limit  sufficiently  favorable  to  the 
defendants. 

H.  Morris,  for  the  defendants. 

G.  M.  Stearns  &  31.  P.  Knowlton,  for  the  plaintiff. 

Exceptions  overruled. 


BAKER  v.  DRAKE. 
New  York,  1873.     53  N.  Y.  211. 

Rapallo,  J.1  The  most  important  question  in  this  case  is 
that  which  relates  to  the  rule  of  damages.  The  judge  at  the 
trial,  following  the  case  of  Markham  v.  Jaudon,  41  N.  Y. 
235,  instructed  the  jury  that  the  plaintiff,  if  entitled  to  re- 
cover, was  entitled  to  the  difference  between  the  amount  for 
which  the  stock  was  sold  by  the  defendants  and  the  highest 
market  value  which  it  reached  at  any  time  after  such  sale 
down  to  the  day  of  trial. 

This  rule  of  damages  has  been  recognized  and  adopted  in 
several  late  adjudications  in  this  State  in  actions  for  the  con- 
version of  property  of  fluctuating  value  ;  but  its  soundness, 
as  a  general  rule,  applicable  to  all  cases  of  conversion  of  such 
property,  has  been  seriously  questioned,  and  is  denied  in 
various  adjudications  in  this  and  other  States. 

This  court  has,  in  several  instances,  intimated  a  willing- 
ness to  re-examine  the  subject,  and  in  Mathews  v.  Coe,  49 
N.  Y.  57,  per  Church,  C.J.,  stated  very  distinctly  that  an  un- 
qualified rule,  giving  a  plaintiff  in  all  cases  of  conversion  the 
benefit  of  the  highest  price  to  the  time  of  trial,  could  not 

1  Part  of  the  opinion  ia  omitted. 


316  CASES   ON   DAMAGES.' 

be  upheld  upon  any  sound  principle  of  reason  or  justice,  and 
that  we  did  not  regard  the  rule  referred  to  so  firmly  settled 
by  authority  as  to  be  beyond  the  reach  of  review,  whenever 
an  occasion  should  render  it  necessary. 

Whether  the  present  action  is  one  for  the  conversion  of 
property  of  the  plaintiff,  or  for  the  breach  of  a  special  con- 
tract, presents  a  serious  question,  but  that  inquiry  is  perhaps 
unimportant  on  the  question  of  damages  and  will  be  deferred 
for  the  present,  and  the  case  treated  as  if  it  were  one  of 
conversion. 

Regarding  it  in  that  light,  the  question  is  whether  or  not, 
under  the  circumstances  of  the  case,  the  rule  adopted  by  the 
court  below  affords  the  plaintiff  more  than  a  just  indemnity 
for  the  loss  he  sustained  by  the  sale  of  the  stock.  It  is  not 
pretended  that  the  defendants  realized  any  profit  by  the 
transaction,  and  therefore  the  inquiry  is  confined  to  the  loss 
sustained  by  the  plaintiff. 

It  does  not  appear  that  there  was  any  express  contract 
made  between  the  parties,  defining  the  terms  upon  which  the 
defendants  were  to  purchase  or  cany  stocks  for  the  plaintiff. 
All  that  appears  upon  that  subject  in  the  evidence  is,  that 
the  plaintiff,  through  his  friend  Rogers,  deposited  various 
sums  of  money  with  the  defendants,  and  from  time  to  time 
directed  them  to  purchase  for  his  account  shares  of  stock  to 
an  amount  of  cost  from  ten  to  twenty  times  greater  than  the 
sums  deposited ;  which  the}'  did.  No  agreement  as  to  mar- 
gin or  as  to  the  carrying  of  the  stock  by  the  defendants  is 
shown  b}'  the  evidence,  but  the  plaintiff  alleges  in  his  com- 
plaint that  the  agreement  was  that  he  should  deposit  with 
the  defendants  such  collateral  security  or  margin  as  they 
should  from  time  to  time  require ;  and  that  they  would  pur- 
chase the  stock  and  hold  and  cany  the  same,  subject  to  the 
plaintiff's  direction  as  to  the  sale  and  disposition  thereof,  as 
long  as  the  plaintiff  should  desire,  and  would  not  sell  or  dis- 
pose of  the  same  unless  plaintiff's  margin  should  be  exhausted 
or  insufficient,  and  not  then,  unless  the}*  should  demand  of 
the  plaintiff  increased  securit}',  or  require  him  to  take  and 


BAKER   v.  DRAKE.  317 

pay  for  the  stocks,  and  give  him  clue  notice  of  the  time  and 
place  of  sale,  and  due  opportunity  to  make  good  his  margin. 

The  answer  denies  only  the  agreement  to  give  notice  of 
the  time  and  place  of  sale,  admitting  by  implication  that  in 
other  respects  the  agreement  is  correctly  set  forth. 

This  is  all  that  appears  upon  the  record  in  reference  to  the 
contract  under  which  the  stocks  were  purchased. 

The  transactions  under  this  contract  appear  in  detail  b}'  a 
final  account  rendered  by  the  defendants  to  the  plaintiff,  after 
the  stock  had  been  sold.  This  account  was  upon  the  trial 
admitted  to  be  correct,  the  plaintiff  reserving  the  right  only 
to  dispute  certain  charges  of  interest,  which,  however,  if  suc- 
cessfully assailed,  would  not  vary  the  result  to  an  extent 
sufficient  to  affect  the  reasoning  based  upon  it. 

From  this  account  it  appears  that  the  plaintiff  had,  during 
the  whole  course  of  his  transactions  with  the  defendants, 
advanced  in  the  aggregate  but  $4240  toward  the  purchase 
of  shares,  which,  at  the  time  of  the  alleged  wrongful  sale, 
Nov.  14,  1868,  had  cost  the  defendants  upward  of  $66,300 
over  and  above  all  the  sums  so  advanced  by  the  plaintiff. 

By  the  stock  lists  in  evidence  it  appears  that  these  shares 
were  then  of  the  market  value  of  less  than  $67,000,  and  the 
surplus  arising  from  the  sale,  after  paying  the  amount  due  the 
defendants,  amounted  to  only  $558,  which  sum  represents  the 
value  at  that  time  of  the  plaintiff's  interest  in  the  property  sold. 

It  so  happened,  however,  that  within  a  few  days  after  the 
sale  the  market  price  of  the  stock  rose,  and  that  at  the  time 
of  the  commencement  of  this  action,  Nov.  24,  1868,  the 
shares  would  have  brought  some  $5500  more  than  the  sum 
for  which  they  had  been  sold.  But  after  the  commencement 
of  the  action,  and  before  the  trial,  the  stock  underwent  alter- 
nate elevation  and  depression,  and  reached  its  maximum 
point  in  August,  1869,  at  which  time  one  sale,  of  thirty 
shares  at  170  per  cent,  was  proved.  It  afterward  declined, 
and  on  the  day  preceding  the  trial,  Oct.  20,  1869,  the  price 
was  143,  having,  for  a  month  previous  to  the  trial,  ranged 
between  137  and  145. 


318  CASES   ON  DAMAGES. 

The  juiy,  in  obedience  to  the  rule  laid  down  by  the  court, 
found  a  verdict  for  the  plaintiff  for  $18,000,  being  just  the 
difference  between  134,  which  was  the  average  price  at  which 
the  defendants  sold,  and  170,  the  highest  price  touched  be- 
fore the  trial ;  thirty-six  per  cent  on  500  shares.  More  than 
two  thirds  of  this  supposed  damage  arose  after  the  bringing 
of  the  suit. 

This  enormous  amount  of  profit,  given  under  the  name  of 
damages,  could  not  have  been  arrived  at  except  upon  the 
unreasonable  supposition,  unsupported  by  any  evidence,  that 
the  plaintiff  would  not  onl}-  have  supplied  the  necessary  mar- 
gin and  caused  the  stock  to  be  carried  through  all  its  fluctu- 
ations until  it  reached  its  highest  point,  but  that  he  would 
have  been  so  fortunate  as  to  seize  upon  that  precise  moment 
to  sell,  thus  avoiding  the  subsequent  decline,  and  realizing 
the  highest  profit  which  could  have  possibly  been  derived 
from  the  transaction  by  one  endowed  with  the  supernatural 
power  of  prescience. 

In  a  case  where  the  loss  of  probable  profits  is  claimed  as  an 
element  of  damage,  if  it  be  ever  allowable  to  mulct  a  defend- 
ant for  such  a  conjectural  loss,  its  amount  is  a  question  of 
fact,  and  a  finding  in  respect  to  it  should  be  based  upon 
some  evidence.  In  respect  to  a  dealing  which,  at  the  time 
of  its  termination,  was  as  likely  to  result  in  further  loss  as 
in  profit,  to  la}*  down  as  an  inflexible  rule  of  law  that  as 
damages  for  its  wrongful  interruption  the  largest  amount  of 
profit  which  subsequent  developments  disclose,  might,  under 
the  most  favorable  circumstances,  have  been  possibly  ob- 
tained from  it,  must  be  awarded  to  the  fortunate  individual 
who  occupies  the  position  of  plaintiff,  without  regard  to  the 
probabilities  of  his  realizing  such  profits,  seems  to  me  a  wide 
departure  from  the  elementary  principles  upon  which  dam- 
ages have  hitherto  been  awarded. 

An  amount  sufficient  to  indemnify  the  party  injured  for  the 
loss,  which  is  the  natural,  reasonable,  and  proximate  result  of 
the  wrongful  act  complained  of,  and  which  a  proper  degree 
of  prudence  on  the  part  of  the  complainant  would  not  have 


BAKER   v.   DRAKE.  319 

averted,  is  the  measure  of  damages  which  juries  are  usually 
instructed  to  award,  except  in  cases  where  punitive  damages 
are  allowable.  Before  referring  to  the  authorities  which  are 
supposed  to  govern  the  question,  I  will  briefly  suggest  what 
would  be  a  proper  indemnity  to  the  injured  part}'  in  a  case 
like  the  present,  and  how  greatly  the  rule  under  considera- 
tion exceeds  that  just  limit. 

The  plaintiff  did  not  hold  the  stocks  as  an  investment,  but 
the  object  of  the  transaction  was  to  have  the  chance  of  real- 
izing a  profit  by  their  sale.  He  had  not  paid  for  them.  The 
defendants  had  supplied  all  the  capital  embarked  in  the 
speculation,  except  the  comparatively  trifling  sum  which 
remained  in  their  hands  as  margin.  Assuming  that  the  sale 
was  in  violation  of  the  rights  of  the  plaintiff,  what  was  the 
extent  of  the  injury  inflicted  upon  him?  He  was  deprived  of 
the  chance  of  a  subsequent  rise  in  price.  But  this  was  ac- 
companied with  the  corresponding  chance  of  a  decline,  or,  in 
case  of  a  rise,  of  his  not  availing  himself  of  it  at  the  proper 
moment ;  a  continuance  of  the  speculation  also  required  him 
to  supply  further  margin,  and  involved  a  risk  of  ultimate  loss. 

If,  upon  becoming  informed  of  the  sale,  he  desired  further 
to  prosecute  the  adventure  and  take  the  chances  of  a  future 
market,  he  had  the  right  to  disaffirm  the  sale  and  require  the 
defendants  to  replace  the  stock.  If  they  failed  or  refused  to 
do  this,  his  remedy  was  to  do  it  himself  and  charge  them 
with  the  loss  reasonably  sustained  in  doing  so.  The  advance 
in  the  market  price  of  the  stock  from  the  time  of  the  sale  up 
to  a  reasonable  time  to  replace  it,  after  the  plaintiff  received 
notice  of  the  sale,  would  afford  a  complete  indemnity.  Sup- 
pose the  stock,  instead  of  advancing,  had  declined  after  the 
sale,  and  the  plaintiff  had  replaced  it,  or  had  full  opportunity 
to  replace  it,  at  a  lower  price,  could  it  be  said  that  he  sus- 
tained anjT  damage  by  the  sale ;  would  there  be  any  justice 
or  reason  in  permitting  him  to  lie  by  and  charge  his  broker 
with  the  result  of  a  rise  at  some  remote  subsequent  period? 
If  the  stocks  had  been  paid  for  and  owned  by  the  plaintiff, 
different  considerations  would  arise,  but  it  must  be  borne  in 


320  CASES  ON  DAMAGES. 

mind  that  we  are  treating  of  a  speculation  carried  on  with 
the  capital  of  the  broker,  and  not  of  the  customer.  If  the 
broker  has  violated  his  contract,  or  disposed  of  the  stock 
without  authority,  the  customer  is  entitled  to  recover  such 
damages  as  would  naturally  be  sustained  in  restoring  him- 
self to  the  position  of  which  he  has  been  deprived.  He  cer- 
tainly has  no  right  to  be  placed  in  a  better  position  than  he 
would  be  in  if  the  wrong  had  not  been  done. 

But  the  rule  adopted  in  Markham  v.  Jaudon,  passing  far 
beyond  the  scope  of  a  reasonable  indemnity  to  the  customer 
whose  stocks  have  been  improperly  sold,  places  him  in  a 
position  incomparably  superior  to  that  of  which  he  was  de- 
prived. It  leaves  him,  with  his  venture  out,  for  an  indefinite 
period,  limited  only  by  what  ma}'  be  deemed  a  reasonable 
time  to  bring  a  suit  and  conduct  it  to  its  end.  The  more 
crowded  the  calendar  and  the  more  new  trials  granted  in  the 
action,  the  better  for  him.  He  is  freed  from  the  trouble  of 
keeping  his  margins  good  and  relieved  of  all  apprehension  of 
being  sold  out  for  want  of  margin.  If  the  stock  should  fall 
or  become  worthless,  he  can  incur  no  loss,  but,  if  at  any 
period  during  the  months  or  years  occupied  in  the  litigation 
the  market  price  of  the  stock  happens  to  shoot  up,  though  it 
be  but  for  a  moment,  he  can,  at  the  trial,  take  a  retrospect 
and  seize  upon  that  happ}-  instant  as  the  opportunity  for 
profit  of  which  he  was  deprived  by  his  transgressing  broker, 
and  compel  him  to  replace  with  solid  funds  this  imaginary 
loss.1 

The  most  thorough  consideration  of  the  subject  to  be  found 
in  any  reported  case  is  contained  in  the  extremely  able  opin- 
ion of  Duer,  J.,  in  Suydam  v.  Jenkins,  3  Sandf.  Sup.  Court 
Reports,  619  to  647,  where  that  accomplished  jurist  re- 
views, with  great  discrimination,  man}*  of  the  cases  here 
referred  to,  and  others  which  have  not  been  cited,  and  arrives 
substantially  at  the  same  conclusion  as  that  reached  by 
Church,  C.J.,  in   Mathews  v.   Coe,   that  the   highest   price 

1  The  learned  judge  here  exhaustively  considered  the  earlier  cases 
bearing  upon  the  subject. 


BAKER  v.   DRAKE.  321 

which  the  property  has  borne  at  an}'  time  between  its  con- 
version and  the  trial  cannot  in  all  cases  be  the  just  measure 
of  damages.  The  reasoning  contained  in  that  opinion  is  of 
such  force  as  to  outweigh  the  apparent  preponderance  of 
authority  in  favor  of  the  rule  claimed,  and  demonstrates  its 
fallacy  when  applied  to  the  facts  of  the  present  case,  whether 
the  cause  of  action  be  deemed  for  conversion  of  property  or 
the  breach  of  a  contract. 

When  we  consider  the  opposition  which  this  rule  has  con- 
stantly encountered  in  the  courts,  the  variety  of  the  judg- 
ments in  the  cases  in  which  it  has  been  invoked,  and  the 
doubting  manner  in  which  it  has  been  referred  to  by  eminent 
jurists,  whose  decisions  are  cited  in  its  support,  it  cannot  be 
regarded  as  one  of  those  settled  rules  to  which  the  principle 
of  stare  decisis  should  apply.  See  Startup  v.  Cortazzi,  2 
Ci\,  Mees.  &  Rose.  165;  2  K.  Com.,  637,  11th  ed.,  note; 
Owen  v.  Routh,  14  C.  B.  327  ;  Williams  v.  Archer,  5  Man., 
Gr.  &  Scott,  318 ;  Archer  v.  Williams,  2  Car.  &  Kir.  26 ; 
Rand  v.  White  Mountains  R.  R.  Co.,  40  N.  H.  79  ;  Brass  v. 
Worth,  40  Barb.  648  ;  Pinkerton  v.  Manchester  R.  R.,  42 
N.  H.  424  ;  45  N.  H.  545,  and  the  able  review  of  the  subject 
in  Sedgwick  on  Damages,  pp.  550  to  555,  note,  5th  cd. 

It  seems  to  me,  after  as  full  an  examination  of  the  subject 
as  circumstances  have  permitted,  that  the  dissenting  opinions 
ofGrover  and  Woodruff,  JJ.,  in  Markham  v.  Jaudon,  em- 
body the  sounder  reasons,  and  that  the  rule  of  damages  laid 
down  in  that  case  and  followed  in  the  present  one  is  not  well 
founded,  and  should  not  be  sustained. 

For  this  reason,  without  passing  upon  the  other  questions 
involved  in  the  case,  I  think  the  judgment  should  be  reversed 
and  a  new  trial  ordered,  with  costs  to  abide  the  event. 

Judgment  reversed. 


322  CASES  ON  DAMAGES. 

CHADWICK   v.    BUTLER. 
Michigan,  1873.    28  Mich.  349. 

Action  for  breach  of  contract  to  sell  plaintiff  defendant's 
crop  of  wool.  At  the  trial  the  court  instructed  the  jury 
"  That  if  the  plaintiffs  were  entitled  to  recover,  they  were 
entitled  to  the  highest  market  price  between  the  date  of  the 
purchase  and  the  date  of  the  demand."1 

Cooley,  J.  The  plaintiffs  seem  to  have  claimed  that  they 
were  entitled  to  recover  the  highest  market  value  between  the 
time  of  the  purchase  and  the  time  of  bringing  suit,  and  they 
were  allowed  to  give  some  evidence  on  that  theory.  This 
was  clearly  wrong  in  going  back  of  any  default  on  the 
part  of  defendant,  as  already  shown.  But  had  they  con- 
fined their  questions  to  the  time  between  the  demand  and 
the  commencement  of  suit,  there  is  no  general  rule  that  would 
entitle  them  to  the  recovery  they  claimed.  A  party's  right  of 
recovery  must  be  deemed  fixed  at  some  time,  and  he  cannot 
wait  for  an  indefinite  period  and  speculate  upon  the  changes 
in  the  market  while  taking  upon  himself  none  of  the  risks  of 
decline.  This  would  put  him  in  a  better  position  than  if  he 
had  the  property  in  possession  ;  for  then,  if  he  would  realize 
upon  it,  he  must  select  a  particular  time  for  making  sale,  and 
accept  the  price  at  that  time  ;  while  under  the  rule  relied  upon 
he  may  have  the  highest  price  for  a  series  of  }'ears  by  simply 
postponing  the  bringing  of  suit. 

No  general  rule  can  do  exact  justice  in  all  cases  of  failure 
to  deliver  property  on  demand  to  the  party  entitled,  but  a 
recovery  which,  at  the  time  of  the  demand  and  refusal,  would 
have  enabled  the  part)'  to  purchase  other  property  of  the  like 
kind  and  of  equal  value  at  the  same  place,  is,  in  the  absence 
of  special  circumstances,  as  nearly  just  as  any  the  law  can 
provide  for.     Bates  v.  Stansell,  19  Mich.  91. 

The  judgment  must  be  reversed,  with  costs,  and  a  new 
trial  ordered. 

1  This  short  statement  is  substituted  for  that  of  the  reporter.  Part  of 
the  opinion  is  omitted. 


INGRAM  v.   RANKIN.  323 

INGRAM  v.   RANKIN. 

Wisconsin,  1879.     47  Wis.  406. 

Taylor,  J.1  '  Upon  the  question  of  damages,  the  court  in* 
structed  the  jury  as  follows  :  "  Testimony  has  been  given  in 
respect  to  the  value  of  this  property ;  not  the  value  of  the 
property  at  the  time  it  was  taken,  but  the  highest  value  of  this 
property  at  any  time  since  the  property  was  taken,  to  the 
present  time.  If  the  plaintiff  be  entitled  to  recover,  he  is 
entitled  to  recover  the  highest  value  of  the  property  within  that 
period  of  time,  from  the  time  it  was  taken  to  the  present  time." 
To  this  instruction  the  defendants  duly  excepted. 

After  a  careful  consideration  of  the  decisions  of  this  court 
upon  the  question  as  to  the  rule  of  damages  in  actions  of  this 
kind,  and  an  examination  of  a  large  number  of  cases  decided 
by  the  courts  of  other  States  in  this  country,  and  by  the  courts 
of  England,  we  are  satisfied  that  the  rule  as  laid  down  by  the 
learned  Circuit  Judge  is  not  sustained  by  the  weight  of  author- 
ity, and  that  it  ought  not  to  be  adopted  by  this  court  upon 
principle.  We  think  the  rule  adopted  hy  the  Circuit  Court 
would  in  many  cases  work  great  injustice,  and  violate  the 
rule  that  compensation  for  the  plaintiff's  loss  is  the  true  rule 
of  damages  in  all  cases  in  which  he  is  not  entitled  to  exem- 
plar}' damages.  .  .   . 

It  certainly  cannot  be  said  that  this  court  has  in  any  case 
decided  that,  either  in  actions  for  the  non-deliveiy  of  chattels 
according  to  agreement,  or  in  actions  to  recover  damages  for 
the  conversion  of  the  same,  the  plaintiff  may  recover  as  dam- 
ages the  highest  market  value  of  the  chattels  at  an}*  time 
intermediate  the  time  when  they  should  have  been  delivered 
according  to  contract,  or  the  time  when  they  were  converted, 
and  the  day  of  trial.  On  the  other  hand,  we  think  the  uni- 
form course  of  decision  is,  that  the  measure  of  damages  is 
the  value  of  the  property  at  the  time  fixed  for  the  delivery,  or 

1  Part  of  the  opinion  is  omitted. 


324  CASES   ON   DAMAGES. 

at  the  time  of  the  conversion,  with  interest  to  the  da}-  of  trial ; 
the  onrv  exception  to  the  rule  being  that  in  case  of  replevin, 
where  the  property  is  in  esse  and  supposed  to  be  in  the  hands 
of  the  defendant  at  the  time  of  the  trial,  if  plaintiff  recovers, 
he  may  recover  as  his  damages  the  value  of  the  property  on  the 
day  of  trial,  excluding  any  value  added  to  the  same  by  labor 
or  money  of  the  defendant,  or  those  under  whom  he  claims. 

If  the  question  were  open  for  consideration  in  this  court, 
and  we  were  at  libert}"  now  to  fix  a  rule  of  damages  in  cases 
like  the  one  at  bar,  we  should  feel  constrained  to  fix  the  one 
which  has  already  been  established  by  this  court.  It  is  said 
that  the  rule  giving  as  damages  the  highest  market  value  in- 
termediate the  conversion  or  da}'  of  delivery  and  the  da}'  of 
trial,  should  be  applied  to  articles  of  trade  and  commerce 
which  fluctuate  in  value  from  day  to  day  ;  and  that  to  adhere 
to  the  rule  of  value  at  the  time  of  the  conversion  would  in 
many  cases  allow  the  wrong-doer  to  make  profit  out  of  his  own 
wrong,  or  at  all  events  it  might  prevent  the  plaintiff  from 
taking  advantage  of  a  rising  market,  and  thereby  might 
deprive  him  of  his  reasonable  expectations  of  profit  from 
his  investments. 

There  can  be  no  force  in  the  argument  that  the  defendant 
would  be  allowed  to  make  ruone}'  out  of  his  own  tortious  act. 
If  the  wrong-doer  sells  the  property  which  he  has  unlawfullj' 
taken  from  another,  the  owner  of  the  property  can  waive  the 
tort  and  sue  the  tort-feasor  for  the  money  he  has  received 
upon  such  sale  of  his  property,  and  thereby  prevent  him  from 
making  a  profit  out  of  his  wrong.  But  the  rule  which  allows 
the  plaintiff  to  recover  the  highest  market  value  is  objection- 
able, because  it  allows  him  to  recover  speculative  damages, 
especially  when  a  long  time  elapses  between  the  conversion 
and  the  day  of  trial.  In  most  cases  property  which  rapidly 
changes  in  value  is  not  retained  in  the  possession  or  owner- 
ship of  one  person  for  a  great  length  of  time  ;  and  it  would 
be  a  matter  of  the  utmost  doubt  whether  the  plaintiff,  had  he 
not  been  deprived  of  the  possession  of  his  property,  would 
have  realized  the  highest  market  value  to  which  it  might  have 


INGRAM  v.  RANKIN.  325 

attained  during  the  time  of  the  conversion  and  the  time  of  trial ; 
and  in  those  cases  where  the  market  value  is  very  fluctuating, 
great  injustice  would  be  done  by  this  rule  to  the  man  who 
honestly  converted  such  property,  in  the  belief  that  it  was  his 
own,  if,  after  the  lapse  of  five  or  six  years,  he  should  be 
called  upon  to  pay  the  highest  market  value  it  had  attained 
during  that  time.  The  hardship  of  enforcing  this  rule  in  the 
case  of  stocks,  which  is  perhaps  property  of  the  most  unfixed 
value,  forced  the  Court  of  Appeals  in  New  York  to  repudiate 
the  rule,  after  it  had  been  partially  adopted  by  the  courts  of 
that  State.  See  Baker  v.  Drake,  53  N.  Y.  211 ;  Bank  v.  Bank, 
60N.Y.  42.  .  .  . 

The  rule  fixing  the  measure  of  damages  in  actions  for 
breaches  of  contract  for  the  delivery  of  chattels,  and  in 
all  actions  for  the  wrongful  and  unlawful  taking  of  chattels, 
whether  such  as  would  formerly  have  been  denominated  tres- 
pass de  bonis  or  trover,  at  the  value  of  the  chattels  at  the  time 
when  delivery  ought  to  have  been  made,  or  at  the  taking  or 
conversion,  with  interest,  is  certainly  founded  upon  principle. 
It  harmonizes  with  the  rule  which  restricts  the  plaintiff  to 
compensation  for  his  loss,  and  is  as  just  and  equitable  as  any 
other  general  rule  which  the  courts  have  been  able  to  prescribe, 
and  has  greatly  the  advantage  of  certainty  over  all  others. 

We  have  concluded,  therefore,  to  adhere  to  the  general  rule 
laid  clown  by  this  court  in  the  cases  cited,  and  hold  that  in  all 
actions,  either  upon  contract  for  the  non-deliveiy  of  goods,  or 
for  the  tortious  taking  or  conversion  of  the  same,  "  unless," 
in  the  language  of  Sedgwick  (Damages,  6th  ed.,  p.  1591), 
"the  plaintiff  is  deprived  of  some  special  use  of  the  property 
anticipated  b}'  the  wrong-doer,"  and  in  the  absence  of  proof 
of  circumstances  which  would  entitle  the  plaintiff  to  recover 
exemplary  or  punitory  damages,  the  measure  of  damages  is, 
first,  the  value  of  the  chattels  at  the  time  and  place  when  and 
where  the  same  should  have  been  delivered,  or  of  the  wrongful 
taking  or  conversion,  with  interest  on  that  sum  to  the  date 
of  trial ;  second,  if  it  appears  that  the  defendant,  in  case  of 
a  wrongful  taking  or  conversion,  has  sold  the  chattels,  the 


326  CASES  ON  DAMAGES. 

plaintiff  may,  at  his  election,  recover  as  his  damages  the 
amount  for  which  the  same  were  sold,  with  interest  from  the 
time  of  the  sale  to  the  day  of  trial ;  third,  if  it  appears  that  the 
chattels  wrongfully  taken  or  converted  are  still  in  the  posses- 
sion of  the  defendant  at  the  time  of  the  trial,  the  plaintiff 
ma}*,  at  his  election,  recover  the  present  value  of  the  same 
at  the  place  where  the  same  were  taken  or  converted,  in  the 
form  they  were  in  when  so  taken  or  converted. 

These  rules  will  prevent  the  defendant  from  making  profit 
out  of  his  own  wrong,  will  give  the  plaintiff  the  benefit  of  any 
advance  in  the  price  of  the  chattels  when  defendant  holds 
possession  of  the  same  at  the  time  of  the  trial,  and  on  the 
whole  will  be  much  more  equitable  than  the  rule  given  by  the 
court  below.  .  .  . 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded  for  a  new  trial. 


GALIGHER  v.   JONES. 
United  States  Supreme  Court,  1889.     129  U.  S.  193. 

Bradley,  J.1  This  is  a  suit  brought  by  Jones,  a  stock- 
broker, against  his  customer,  for  the  balance  of  account 
alleged  to  be  due  to  the  plaintiff  arising  out  of  advances  of 
money  and  purchases  and  sales  made,  and  commissions. 
Galigher,  the  defendant  below,  in  his  answer,  alleged  that  in 
the  month  of  November,  1878,  the  plaintiff,  as  defendant's 
agent,  held  for  him  600  shares  of  mining  stock,  known  as 
"  Challenge"  stock;  and  without  his  consent,  on  the  27th 
and  29th  of  said  November,  sold  the  same  for  his,  the 
plaintiff's,  own  use,  to  the  damage  of  the  defendant  of 
$2850. 

The  case  was  tried  by  a  referee  appointed  by  the  court. 
As  to  the  alleged  wrongful  sale  by  the  plaintiff  of  600  shares 
of  "Challenge"  stock,  the  referee  found  that  the  plaintiff 
1  Part  of  the  opinion  is  omitted. 


GALIGHER  v.  JONES.  327 

held  such  stock  for  the  defendant,  and  on  the  27th  and  29th 
of  November,  1878,  of  his  own  motion,  and  without  notice  to 
the  defendant,  sold  it  for  $1.25  per  share  ;  that  in  December 
the  stock  sold  as  high  as  $2  per  share  ;  in  January  the  highest 
price  was  $3.10  ;  in  February  the  highest  price  was  $5.50. 
The  referee  allowed  the  defendant  the  highest  price  in 
January,  namely,  $3.10  per  share,  being  an  advance  of 
$1.85  above  what  the  plaintiff  sold  the  stock  for,  which, 
for  the  whole  600  shares,  amounted  to  $1110.  The  reason 
assigned  by  the  referee  for  not  allowing  the  defendant  the 
highest  price  in  February  (namely,  $5.50  per  share)  was 
that  before  that  time  the  defendant  had  reasonable  time, 
after  receiving  notice  of  the  sale  of  his  stock  by  the  plaintiff, 
to  replace  it  by  the  purchase  of  new  stock,  if  he  desired  so 
to  do ;  and  he  allowed  him  the  highest  price  which  the 
stock  reached  within  that  reasonable  time.  In  this  conclu- 
sion we  think  the  referee  was  correct,  and  as  to  this  item 
we  see  no  error  in  the  result.  .  .  . 

It  has  been  assumed,  in  the  consideration  of  the  case,  that 
the  measure  of  damages  in  stock  transactions  of  this  kind  is  the 
highest  intermediate  value  reached  by  the  stock  between 
the  time  of  the  wrongful  act  complained  of  and  a  reasonable 
time  thereafter,  to  be  allowed  to  the  party  injured  to  place 
himself  in  the  position  he  would  have  been  in  had  not  his 
rights  been  violated.  This  rule  is  most  frequently  exempli- 
fied in  the  wrongful  conversion  by  one  person  of  stocks 
belonging  to  another.  To  allow  merely  their  value  at  the 
time  of  conversion  would,  in  most  cases,  afford  a  very 
inadequate  remedy,  and,  in  the  case  of  a  broker,  holding 
the  stocks  of  his  principal,  it  would  afford  no  remedy  at  all. 
The  effect  would  be  to  give  to  the  broker  the  control  of  the 
stock,  subject  only  to  nominal  damages.  The  real  injury 
sustained  by  the  principal  consists  not  merely  in  the  assump- 
tion of  control  over  the  stock,  but  in  the  sale  of  it  at  an 
unfavorable  time,  and  for  an  unfavorable  price.  Other 
goods  wrongfully  converted  are  generally  supposed  to  have 
a  fixed  market  value  at  which  they  can  be  replaced  at  any 


328  CASES  ON  DAMAGES. 

time  ;  and  hence,  with  regard  to  them,  the  ordinary  measure 
of  damages  is  their  value  at  the  time  of  conversion,  or,  in 
case  of  sale  and  purchase,  at  the  time  fixed  for  their  delivery. 
But  the  application  of  this  rule  to  stocks  would,  as  before 
said,  be  very  inadequate  and  unjust. 

The  rule  of  highest  intermediate  value  as  applied  to  stock 
transactions  has  been  adopted  in  England  and  in  several  of 
the  States  in  this  country  ;  whilst  in  some  others  it  has  not 
obtained.  The  form  and  extent  of  the  rule  have  been  the 
subject  of  much  discussion  and  conflict  of  opinion.  The 
cases  will  be  found  collected  in  Sedgwick  on  the  Measure  of 
Damages  [479],  vol.  2,  7th  ed.  379,  note  (b)  ;  Bayne  on 
Damages,  83  (92  Law  Lib.) ;  1  Smith's  Lead.  Cas.  (7  Amer. 
ed.)  367.  The  English  cases  usually  referred  to  are  Cud  v. 
Rutter,  1  P.  Wms.  572,  4th  ed.  [London,  1777],  note  (3); 
Owen  v.  Routh,  14  C.  B.  327 ;  Loder  v.  Kekule,  3  C.  B. 
(n.  s.)  128  ;  France  v.  Gaudet,  L.  R.  6  Q.  B.  199.  It  is 
laid  down  in  these  cases  that  where  there  has  been  a  loan  of 
stock  and  a  breach  of  the  agreement  to  replace  it,  the  measure 
of  damages  will  be  the  value  of  the  stock  at  its  highest  price 
on  or  before  the  da}'  of  trial. 

The  same  rule  was  approved  by  the  Supreme  Court  of 
Pennsylvania  in  Bank  of  Montgomery  v.  Reese,  26  Penn.  St. 
(2  Casey),  143,  and  Musgrave  v.  Beckendorff,  53  Penn.  St.  (3 
P.  F.  Smith)  310.  But  it  has  been  restricted  in  that  State 
to  cases  in  which  a  trust  relation  exists  between  the  parties, 
—  a  relation  which  would  probably  be  deemed  to  exist  be- 
tween a  stock-broker  and  his  client.  See  Wilson  v.  Whit- 
aker,  49  Penn.  St.  (13  Wright)  114;  Huntingdon  R.  R.  Co. 
v.  English,  86  Penn.  St.  247. 

Perhaps  more  transactions  of  this  kind  arise  in  the  State  of 
New  York  than  in  all  other  parts  of  the  countr\r.  The  rule 
of  highest  intermediate  value  up  to  the  time  of  trial  formerly 
prevailed  in  that  State,  and  may  be  found  laid  down  in 
Romaine  v.  Van  Allen,  26  N.  Y.  309,  and  Markham  v. 
Jaudon,  41  N.  Y.  235,  and  other  cases,  —  although  the 
rigid  application  of  the  rule  was  deprecated  by  the  New  York 


FORSYTH  v.   WELLS.  329 

Superior  Court  in  an  able  opinion  by  Judge  Duer,  in  Suydam 
v.  Jenkins,  3  Sandford,  N.  Y.  614.  The  hardship  which 
arose  from  estimating  the  damages  by  the  highest  price  up 
to  the  time  of  trial,  which  might  be  years  after  the  transac- 
tion occurred,  was  often  so  great,  that  the  Court  of  Appeals 
of  New  York  was  constrained  to  introduce  a  material  modifi- 
cation in  the  form  of  the  rule,  and  to  hold  the  true  and  just 
measure  of  damages  in  these  cases  to  be,  the  highest  inter- 
mediate value  of  the  stock  between  the  time  of  its  conversion 
and  a  reasonable  time  after  the  owner  has  received  notice  of 
it  to  enable  him  to  replace  the  stock.  This  modification  of 
the  rule  was  veiy  ably  enforced  in  an  opinion  of  the  Court 
of  Appeals  delivered  by  Judge  Rapallo,  in  the  case  of  Baker 
v.  Drake,  53  N.  Y.  211,  which  was  subsequently  followed  in 
the  same  case  in  66  N.  Y.  518,  and  in  Gruman  v.  Smith,  81 
N.  Y.  25  ;  Colt  v.  Owens,  90  N.  Y.  368  ;  and  Wright  u.  Bank 
of  Metropolis,  110  N.  Y.  237. 

It  would  be  a  herculean  task  to  review  all  the  various  and 
conflicting  opinions  that  have  been  delivered  on  this  subject. 
On  the  whole  it  seems  to  us  that  the  New  York  rule,  as  finally 
settled  by  the  Court  of  Appeals,  has  the  most  reasons  in  its 
favor,  and  we  adopt  it  as  a  correct  view  of  the  law. 


Section  5.  —  Damages  upon  Severance  from  Realty. 

FORSYTH  v.   WELLS. 

Pennsylvania,  1861.     41  Pa.  291. 

Lowrie,  C.J.  We  are  to  assume  that  it  was  by  mistake 
that  the  defendant  below  went  beyond  his  line  in  mining  his 
coal,  and  mined  and  carried  away  some  of  the  plaintiff's 
coal,  and  it  is  fully  settled  that  for  (his  trover  lies.  3  S.  &  R. 
515  ;  9  Watts,  172  ;  8  Barr,  294  ;  9  Id.  343  ;  9  Casey,  251. 

What,  then,  is  the  measure  of  damages?  The  plaintiff 
insists  that,  because  the  action  is  allowed  for  the  coal  as  per- 


330  CASES   ON   DAMAGES. 

sonal  property,  that  is,  after  it  had  been  mined  or  severed 
from  the  realty,  therefore,  by  necessary  logical  sequence,  she 
is  entitled  to  the  value  of  the  coal  as  it  lay  in  the  pit  after  it 
had  been  mined  ;  and  so  it  was  decided  below.  It  is  appar- 
ent that  this  view  would  transfer  to  the  plaintiff  all  the  de- 
fendant's labor  in  mining  the  coal,  and  thus  give  her  more 
than  compensation  for  the  injury  done. 

Yet  we  admit  the  accuracy  of  this  conclusion,  if  we  may 
properly  base  our  reasoning  on  the  form,  rather  than  on  the 
principle  or  purpose  of  the  remedy.  But  this  we  may  not 
do  ;  and  especially  we  may  not  sacrifice  the  principle  to  the 
very  form  by  which  we  are  endeavoring  to  enforce  it.  Prin- 
ciples can  never  be  realized  without  forms,  and  they  are 
often  inevitably  embarrassed  by  unfitting  ones ;  but  still  the 
fact  that  the  form  is  for  the  sake  of  the  principle,  and  not 
the  principle  for  the  form,  requires  that  the  form  shall  serve, 
not  rule,  the  principle,  and  must  be  adapted  to  its  office. 

Just  compensation  in  a  special  class  of  cases  is  the  prin- 
ciple of  the  action  of  trover,  and  a  little  study  will  show  us 
that  it  is  no  unyielding  form,  but  adapts  itself  to  a  great 
variety  of  circumstances.  In  its  original  purpose,  and  in 
strict  form,  it  is  an  action  for  the  value  of  personal  property 
lost  by  one  and  found  bjr  another,  and  converted  to  his  own 
use.  But  it  is  not  thus  restricted  in  practice  ;  for  it  is  con- 
tinually applied  to  every  form  of  wrongful  conversion,  and 
of  wrongful  taking  and  conversion,  and  it  affords  compensa- 
tion not  only  for  the  value  of  the  goods,  but  also  for  outrage 
and  malice  in  the  taking  and  detention  of  them.  6  S.  &  R. 
426;  12  Id.  93;  3  Watts,  333.  Thus  form  yields  to  pur- 
pose for  the  sake  of  completeness  of  remedy.  Even  the 
action  of  replevin  adapts  itself  thus.  1  Jones,  381.  And  so 
does  trespass.     7  Casey,  456. 

In  ver\T  strict  form,  trespass  is  the  proper  remedy  for  a 
wrongful  taking  of  personal  property,  and  for  cutting  timber, 
or  quarrying  stone,  or  digging  coal  on  another  man's  land 
and  carrying  it  away  ;  and  yet  the  trespass  may  be  waived 
and  trover  maintained,  without  giving  up  any  claim  for  any 


FORSYTH  v.  WELLS.  331 

outrage  or  violence  in  the  act  of  taking.  3  Barr,  13.  It  is 
quite  apparent,  therefore,  that  this  form  of  action  is  not  so 
uniform  and  rigid  in  its  administration  as  to  force  upon  us 
any  given  or  arbitrary  measure  of  compensation.  It  is 
simply  a  form  of  reaching  a  just  compensation,  according  to 
circumstances,  for  goods  wrongfully  appropriated.  When 
there  is  no  fraud,  or  violence,  or  malice,  the  just  value  of  the 
property  is  enough.     11  Casey,  28. 

When  the  taking  and  conversion  are  one  act,  or  one  con- 
tinued series  of  acts,  trespass  is  the  more  obvious  and  proper 
remedy  ;  but  the  law  allows  the  waiver  of  the  taking,  so  that 
the  part}-  may  sue  in  trover ;  and  this  is  often  convenient. 
Sometimes  it  is  even  necessary  ;  because  the  plaintiff,  with 
full  proof  of  the  conversion,  may  fail  to  prove  the  taking  by 
the  defendant.  But  when  the  law  does  allow  this  departure 
from  the  strict  form,  it  is  not  In  order  to  enable  the  plaintiff, 
b}'  his  own  choice  of  actions,  to  increase  his  recovery  beyond 
just  compensation  ;  but  only  to  give  him  a  more  convenient 
form  for  recovering  that  much. 

Our  case  raises  a  question  of  taking  by  mere  mistake,  be- 
cause of  the  uncertainty  of  boundaries  ;  and  we  must  confine 
ourselves  to  this.  The  man}-  conflicting  opinions  on  the 
measure  of  damages  in  cases  of  wilful  wrong,  and  especially 
the  very  learned  and  thoughtful  opinions  in  the  case  of  ttils- 
bury  v.  McCoon,  4  Denio,  332,  and  3  Comst.  379,  warn  us  to 
be  careful  how  we  express  ourselves  on  that  subject. 

We  do  find  cases  of  trespass,  where  judges  have  adopted  a 
mode  of  calculating  damages  for  taking  coal,  that  is  sub- 
stantially equivalent  to  the  rule  laid  down  by  the  Common 
Pleas  in  this  case,  even  where  no  wilful  wrong  was  done, 
unless  the  taking  of  the  coal  out  by  the  plaintiff's  entry  was 
regarded  as  such.  But  even  then,  we  cannot  avoid  feeling 
that  there  is  a  taint  of  arbitrariness  in  such  a  mode  of  calcu- 
lation, because  it  does  not  truly  mete  out  just  compensation. 
5  M.  &  W.  351  ;  9  Id.  672  ;  3  Queen's  B.  283  ;  and  sec  28 
Eng.  L.  &  E.  175.  We  prefer  the  rule  in  Wood  v.  More- 
wood,  3  Queen's  B.  440,  n.,  where  Parke,  B.,  decided,  in  a 


332  CASES  ON  DAMAGES. 

case  of  trover  for  taking  coals,  that  if  the  defendant  acted 
fairly  and  honestly,  in  the  full  belief  of  his  right,  then  the 
measure  of  damages  is  the  fair  value  of  the  coals,  as  if  the 
coal-field  had  been  purchased  from  the  plaintiffs.  See  also 
Bainbridge  on  Mines  and  Minerals,  510  ;  17  Pick.  1. 

Where  the  defendant's  conduct,  measured  by  the  standard 
of  ordinary  morality  and  care,  which  is  the  standard  of  the 
law,  is  not  chargeable  with  fraud,  violence,  or  wilful  negli- 
gence or  wrong,  the  value  of  the  propert}-  taken  and  con- 
verted is  the  measure  of  just  compensation.  If  raw  material 
l;as,  after  appropriation  and  without  such  wrong,  been 
changed  by  manufacture  into  a  new  species  of  property,  as 
grain  into  whiske}',  grapes  into  wine,  furs  into  hats,  hides 
into  leather,  or  trees  into  lumber,  the  law  either  refuses  the 
action  of  trover  for  the  new  article,  or  limits  the  recover}' 
to  the  value  of  the  original  article.  6  Hill,  425  and  note ;  21 
Barbour,  92  ;  23  Conn.  523  ;  38  Maine,  174. 

Where  there  is  no  wrongful  purpose  or  wrongful  negligence 
in  the  defendant,  compensation  for  the  real  injur}7  done  is  the 
purpose  of  all  remedies  ;  and  so  long  as  we  bear  this  in 
mind,  we  shall  have  but  little  difficulty  in  managing  the  forms 
of  actions  so  as  to  secure  a  fair  result.  If  the  defendant  in 
this  case  was  guilt}'  of  no  intentional  wrong,  he  ought  not  to 
have  been  charged  with  the  value  of  the  coal  after  he  had 
been  at  the  expense  of  mining  it ;  but  only  with  its  value  in 
place,  and  with  such  other  damage  to  the  land  as  his  mining 
may  have  caused.  Such  would  manifestly  be  the  measure  in 
trespass  for  mesne  profits.     7  Casey,  456. 

Judgment  reversed,  and  a  new  trial  awarded. 
Read,  J.,  dissented. 


McLEAN  COUNTY  COAL  CO.  v.  LONG. 

Illinois,  1876.     81  111.  359. 

Breese,  J.    This  was  trover,  in  the  McLean  Circuit  Court, 
by  John  Long,  plaintiff,  and  against  the  McLean  County  Coal 


Mclean  county  coal  co.  ».  long.  333 

Compaq,  defendants,  to  recover  damages  for  the  conversion 
of  a  quantity  of  coals  taken  from  the  land  of  plaintiff. 

There  is  no  controversj*  about  the  fact  of  taking  and  con- 
verting the  coals,  the  only  question  being  as  to  the  measure 
of  damages. 

The  leading  facts  are,  that  defendants  had  in  the  summer 
of  1872  sunk  and  worked  a  shaft  on  their  own  land,  three 
hundred  and  thirty-three  feet  west  of  the  west  boundarj'  of 
plaintiff's  lots,  to  the  depth  of  five  hundred  and  forty-nine 
feet.  At  the  session  of  the  General  Assembly  held  in  1872, 
an  act  was  passed  providing  for  the  health  and  safety  of  per- 
sons employed  in  coal-mines,  in  force  July  1,  1872,  in  which 
it  was  provided  that  an  accurate  map  or  plan  of  the  workings 
of  each  coal-mine,  showing,  among  other  things,  the  general 
inclination  of  the  strata,  together  with  any  material  deflec- 
tions in  the  workings,  should  be  made,  and  a  copy  thereof 
filed  in  the  recorder's  office  of  the  proper  county.  R.  S.  1874, 
ch.  93,  p.  704. 

Upon  making  and  filing  a  map  of  appellant's  mine,  appellee 
discovered  for  the  first  time,  in  1873,  that  appellants  had 
worked  out  of  bounds,  and,  in  1872,  taken  from  his  land  coals 
which  were  found  to  amount  to  six  hundred  and  ten  tons, 
from  a  stratum  about  two  feet  thick.  When  appellee  made 
this  discovery,  he  went  to  the  proper  officer  of  the  company 
and  demanded  the  coal,  and  on  another  occasion  demanded 
pay  for  it.  At  the  time  of  the  demand  not  a  pound  of  this 
coal  was  in  possession  of  the  company,  it  having  been  sold 
and  disposed  of  months  before.  When  this  demand  was 
made,  appellants  replied,  the  land  did  not  belong  to  them, 
and  that  they  were  responsible  to  one  Cox. 

The  action  was  brought  to  the  February  term,  1874. 

The  controversy  was  upon  the  measure  of  damages.  Ap- 
pellants' theory  was,  the  value  of  the  coal  when  first  it  be- 
came a  chattel ;  that  of  appellee,  its  value  in  the  market ; 
which  latter  theory  the  court  accepted,  and  gave,  of  its  own 
motion,  the  following  instruction  :  — 

"  The  court  instructs  the  jury  that  if  they  believe,  from  the 


334  CASES  ON  DAMAGES. 

evidence,  that  the  defendant  wrongfully  took  and  converted 
to  its  own  use  the  coal  of  plaintiff,  as  alleged  in  plaintiff's 
declaration,  the  jury  will  find  the  defendant  guilt}',  and  assess 
the  plaintiff's  damages  at  the  fair  market  value  of  the  coal  at 
the  time  the  same  was  sold  and  converted  by  defendant  to  its 
own  use,  and  to  this  amount,  so  ascertained,  the  jury  may,  in 
their  discretion,  allow  interest  at  the  rate  of  six  per  cent  per 
annum  from  the  date  of  such  conversion  to  the  present  time." 

The  jury  found  for  the  plaintiff,  and  assessed  the  damages 
at  twelve  hundred  and  eighty-one  dollars,  for  which  the  court 
rendered  judgment,  overruling  defendants'  motion  for  a  new 
trial,  and  the  defendants  appeal. 

When  this  coal  was  taken  to  the  mouth  of  the  shaft,  it  was 
worth  at  the  shaft  two  dollars  and  ten  cents  per  ton,  and  this 
the  jury  allowed,  no  deduction  being  made  for  the  cost  of  get- 
ting it  to  the  mouth  of  the  shaft,  —  all  evidence  offered  by 
appellants  on  this  point  being  ruled  out  by  the  court. 

Is  the  rule  given  to  the  jury  by  which  to  measure  the 
damages  a  correct  rule,  having  its  foundation  in  reason  and 
authority  ? 

Common  observation  and  reason  inform  us  that  these  coals, 
in  their  native  bed,  more  than  five  hundred  feet  below  the 
surface  of  the  ground,  were  of  no  appreciable  value  ;  they 
were  made  valuable  by  the  labor  and  expense  of  appellants ; 
by  these  they  obtained  a  market  value. 

How  are  the  authorities  upon  this  question?  Martin  v. 
Porter,  5  Meeson  and  Welsby,  351,  is  cited  by  appellee. 
That  was  trespass  for  breaking  and  entering  plaintiff's  close, 
and  breaking  and  entering  a  certain  coal-mine  under  the 
close,  and  taking  and  carrying  away  the  coal,  and  converting 
and  disposing  of  it  to  the  use  of  the  defendant. 

The  plaintiff  claimed  that  he  had  a  right  to  hold  the  de- 
fendant liable  for  the  value  of  the  coal  when  gotten  and  when 
first  it  existed  as  a  chattel,  without  any  deduction  for  the  ex- 
pense of  getting  it. 

Parke,  Baron,  before  whom  the  cause  was  tried,  said  that 
the  plaintiff  would  have  been  entitled,  in  an  action  of  trover, 


McLEAN  COUNTY  COAL  CO.  v.  LONG.  335 

to  the  value  of  the  coal  as  a  chattel,  either  at  the  pit's  mouth 
or  on  the  canal  bank,  if  the  plaintiff  had  demanded  it  at  either 
place,  and  the  defendant  had  converted  it,  without  allowing 
anything  for  having  worked  and  brought  it  there  ;  that  not 
having  made  such  a  demand,  and  the  action  being  trespass, 
he  was  entitled  to  the  value  of  the  coal  as  a  chattel  at  the 
time  when  the  defendant  began  to  take  it  away  ;  that  is,  as 
soon  as  it  existed  as  a  chattel ;  which  value  would  be  the 
sale  price  at  the  pit's  mouth,  after  deducting  the  expense  of 
carrying  the  coals  from  the  place  in  the  mine  where  they  were 
got,  to  the  pit's  mouth. 

In  the  Exchequer,  the  rule,  so  given  by  Parke,  Baron,  was 
held  by  the  whole  court  as  the  true  rule. 

This  rule  was  adhered  to  in  Wild  et  al.  v.  Holt,  9  Mees. 
and  Wels.  671,  and  also  in  the  Court  of  Queen's  Bench,  in 
Morgan  v.  Powell,  3  Aclolphus  and  Ellis,  278,  43  Eng.  C.  L. 
734. 

This  question  came  before  this  court  at  the  January  term, 
1874,  in  Robertson  v.  Jones  et  al,  71  111.  405,  and  the  same 
rule  was  announced.  In  California  the  same  doctrine  is  held. 
Magi  v.  Tappan,  23  Cal.  306.  See  also,  Moody  v.  Whitney, 
38  Maine,  174.  Other  cases  might  be  cited,  but  it  is  unne- 
cessary, as  this  court  has  recognized  the  rule  as  a  correct  one 
in  Robertson  v.  Jones  et  al. 

But  it  is  said  these  were  actions  of  trespass,  and  while  the 
rule  may  be  a  just  one  in  such  an  action,  it  is  not  so  in  trover. 

The  ordinary  principle  is,  that  a  party  is  entitled  to  recover 
compensation  only  for  the  damage  he  has  actually  sustained, 
no  matter  what  may  be  the  form  of  action.  A  different  rule 
of  damages  does  not  prevail  in  trespass  for  breaking  and 
entering  a  coal-mine  and  carrying  away  coals,  and  trover  for 
the  coals,  except  when  circumstances  of  aggravation  are  relied 
on  in  trespass.  The  rule  is  the  same  in  both  forms  of  action. 
Mayne  on  Damages,  290. 

No  matter  what  the  form  of  action,  unless  it  be  an  action 
in  which  vindictive  damages,  so  called,  are  sought,  the  jury 
are  restricted  to  compensation  for  the  pecuniary  loss  sus- 


336  CASES   ON  DAMAGES. 

tained  by  the  plaintiff,  and  in  this  case,  as  these  authorities 
hold,  the  estimate  of  loss  depends  on  the  value  of  the  coal 
when  severed  from  the  soil ;  that  is,  the  price  at  which  the 
plaintiff  could  have  sold  it.  This,  it  is  clear,  was  the  value  of 
the  coal  at  the  moment  it  was  severed  by  the  defendants  and 
thrown  into  the  run.  It  was  at  that  moment,  when  defend- 
ants had  made  it  a  chattel,  exercising  control  over  it,  that  the 
conversion  was  complete.  For  the  expense  and  trouble  of 
separating  it  from  its  kindred  la3*ers  and  making  it  a  chattel, 
the  defendants  cannot  claim  to  be  reimbursed  ;  but  the  coal 
had  no  value  as  a  salable  article  without  being  taken  from 
the  pit,  and  an}-  person  purchasing  the  coal  in  the  pit  would 
have  deducted  from  the  price  the  cost  of  bringing  it  to  the 
pit's  mouth. 

This  is,  substantially,  said  by  Lord  Ch.  J.  Denman,  in  de- 
livering the  opinion  in  Morgan  v.  Powell,  and  meets  our 
approval. 

It  follows,  from  these  authorities,  the  rule  given  to  the  jury 
by  which  to  measure  the  damages,  was  not  the  correct  rule. 
During  the  trial,  and  whilst  the  examination  of  the  witnesses 
was  progressing,  the  court  made  this  statement :  — 

"  I  can  now  state  what  I  think  the  measure  of  damages  is. 
I  understand  the  measure  of  damages  is,  the  value  of  the  coal 
at  the  time  of  conversion.  I  think  the  measure  of  damages 
is,  the  value  of  the  coal  at  the  mouth  of  the  shaft,  less  the 
expense  of  drawing  it  up." 

Had  the  court  adhered  to  this  rule,  it  would  have  conformed 
to  the  authorities,  and  especially  to  the  decision  of  this  court 
in  Robertson  v.  Jones  et  al. 

The  doctrine  announced  in  the  cited  cases  has  received  the 
sanction  of  this  court  in  Sturgis  et  al.  v.  Keith,  57  111.  451, 
though  the  subject  in  controversy  was  of  a  different  nature. 
That  was  trover  for  certain  railroad  stocks  which  the  plaintiff 
had  deposited  with  defendant,  who  refused  to  deliver  them  on 
demand.  The  plaintiff  claimed  he  could  select  any  time  at 
which  the  stocks  were  at  the  highest  market  value,  and  re- 
cover accordingly  ;  and  such  had  been  the  ruling  of  several 


SINGLE   ».   SCHNEIDER.  337 

reputable  courts.  This  court  held,  as  a  principle  governing 
this  action,  that  the  value  of  the  stocks  at  the  time  of  the 
conversion  was  the  measure  of  damages ;  and  in  that  case  the 
conversion  was  established  by  the  refusal  to  deliver  on  de- 
mand. The  principle  is,  when  the  chattel  is  converted,  then 
the  damages  are  to  be  estimated. 

In  this  case  no  demand  was  necessary,  as  the  taking  of  the 
coals  was  tortious.  Then,  on  the  principle  of  the  above  cited 
case,  the  damages  must  be  computed  from  the  time  the  coal 
first  became  a  chattel,  for  the  conversion  was  complete  when 
defendants  severed  it  and  threw  it  into  their  run. 

The  cases  in  trover,  cited  by  appellee,  are  not  decisive  of 
this  case.  We  think  the  authorities  above  referred  to  are 
very  satisfactory,  and  this  case  is  properly  settled  by  them. 
On  the  authority  of  these  cases,  and  they  are  in  harmony  with 
justice,  the  court  should  have  told  the  jury  the  plaintiff  could 
recover  as  damages  the  value  of  the  coal  at  the  mouth  of  the 
shaft,  less  the  cost  of  'conveying  it  from  the  place  where  it  is 
dug  to  the  mouth  of  the  shaft.  This  is,  in  effect,  saying  he 
can  recover  the  value  of  the  coal  when  it  first  became  a  chat- 
tel by  being  severed  from  the  mass,  and  under  their  control. 

For  the  errors  indicated  the  judgment  is  reversed,  and  the 
cause  remanded  for  further  proceedings  consistent  with  this 
opinion.  Judgment  reversed. 


SINGLE  v.  SCHNEIDER, 

Wisconsin,  1869.     24  Wis.  299. 

Paine,  J.  This  action  was  brought  to  recover  possession 
of  certain  lumber,  which  it  was  claimed  had  been  manufac- 
tured from  logs  cut  without  authority  upon  the  plaintiff's 
land.  There  was  evidence  tending  to  show  that  the  de- 
fendants, who  owned  land  adjoining  the  plaintiff s,  got  over 
the  line  by  mistake.  And  there  was  also  some  evidence 
tending  to  show  that  the}'  cut  some  on  the  plaintiff's  land, 

22 


338  CASES  ON  DAMAGES. 

after  they  were  notified  of  the  mistake.  There  was  also  an 
offer  of  a  tax  deed  in  evidence,  which  was  rejected  ;  and  the 
plaintiff's  affidavit  shows  that  the  defendants  claimed  title  to 
the  property  under  this  tax  deed.  There  was  some  talk  be- 
tween the  parties  about  the  defendants  settling  with  the 
plaintiff  for  what  they  had  cut ;  but  this  does  not  seem  to 
have  been  done.  Nor  did  the  plaintiff  take  any  steps  to 
recover  the  logs,  but  marked  them  and  kept  watch  of  them  at 
the  mills  until  they  were  sawed  and  rafted,  and  then  brought 
this  action  to  recover  the  lumber.  The  defendants  gave  an 
undertaking  under  the  statute,  and  retained  the  property. 
The  jury  found  for  the  plaintiff,  and  assessed  the  value  of  the 
property  at  the  entire  value  of  the  lumber  as  it  was  proved  to 
have  been  at  the  time  of  commencing  this  suit. 

The  material  and  interesting  question  in  the  case  is, 
whether,  assuming  the  logs  to  have  been  cut  on  the  plain- 
tiffs land,  he  ought  to  recover  the  entire  value  of  the  lumber, 
without  any  deduction  for  the  labor  of  the  defendants  in  cut- 
ting, hauling,  and  manufacturing  the  logs  into  the  lumber. 

If  the  action  had  been  for  the  trespass  or  conversion,  he 
could  only  have  recovered  the  value  of  the  timber  at  the  time 
it  was  taken,  at  least  if  it  was  taken  by  mistake.  Weymouth 
v.  The  Ch.  &  N.  W.  R.  R.  Co.,  17  Wis.  550.  And,  upon  the 
evidence  and  the  whole  record,  I  think  these  defendants  stand 
in  as  favorable  a  position  as  though  it  were  conceded  that  the 
logs  were  taken  by  mistake.  There  is  proof  tending  to  show 
a  mistake  as  to  a  part ;  and  it  appears,  also,  from  the  plaintiff's 
affidavit,  that  they  claimed  title  to  the  land.  They  are  not  to 
be  regarded,  therefore,  as  wilful  trespassers.  Upon  these 
facts,  it  seems  contrary  to  the  dictates  of  natural  justice,  that 
the  plaintiff  should  be  allowed  to  wait  quietly  until  the  de- 
fendants had  manufactured  the  logs  into  lumber,  enhancing 
their  value  four  or  five  fold,  and  then  recover  against  them 
that  entire  value.  True,  it  is  generally  recognized  that  a 
wrong-doer  cannot,  by  changing  the  form  of  another's  prop- 
erty, change  the  title.  The  owner  may  pursue  it,  and  reclaim 
it  specifically  by  whatever  remedy  the  law  gives  him  for  that 


SINGLE   v.   SCHNEIDER.  339 

purpose.  If  he  gets  it,  it  is  his.  But  the  apparent  injustice 
of  allowing  one  to  thus  avail  himself  of  the  labor  and  money 
of  cuother,  in  cases  similar  to  this,  has  led  to  a  modification 
of  this  stringent  rule  of  ownership,  wherever  the  question  is 
resolved  into  one  of  mere  compensation  in  mone}'  for  what- 
ever injury  the  party  may  have  suffered.  This  modification 
has  thus  far  been  developed  almost  entirely  in  actions  of  tres- 
pass or  trover,  like  that  of  Weymouth  v.  Ch.  &  N.  W.  R.  R. 
Co.,  and  the  cases  therein  referred  to.  But,  in  the  recent 
case  of  Herdic  v.  Young,  55  Pa.  St.  176,  the  Supreme  Court 
of  Pennsylvania  applied  the  same  rule  in  an  action  of  replevin. 
They  there  held  that,  inasmuch  as  the  law  gave  the  defendant 
the  power  to  retain  the  property  by  giving  a  bond,  whenever 
he  availed  himself  of  that  right,  the  question  became  then  one 
of  damages  merely,  and  that  the  form  of  action  ought  not  to 
produce  a  difference  in  the  result.  The  damages  to  be  recov- 
ered should  be  the  same  as  though  the  action  were  trespass. 
This  case  seems  to  us  so  well  adapted  to  the  promotion 
of  justice  and  the  prevention  of  injustice,  that  we  have  con- 
cluded to  follow  it.  To  apply  that  rule  here  would  have 
required  the  value  of  the  property  to  have  been  assessed  at 
the  full  value  of  the  lumber,  deducting  the  expense  of  all  that 
the  defendants  had  done  upon  it  down  to  the  time  the  suit 
was  begun.  As  remarked  by  the  court  in  that  case  :  "  Such 
a  standard  of  damages,  growing  out  of  the  nature  of  the  act 
and  the  form  of  the  action,  is  reasonable,  and  does  justice  to 
both  parties.  It  saves  to  the  otherwise  innocent  defendant  his 
labor  and  mone}',  and  gives  to  the  owner  the  enhancement  of 
the  value  of  his  property  growing  out  of  other  circumstances, 
such  as  a  rise  in  the  market  price,  a  difference  in  price  be- 
tween localities,  and  other  adventitious  causes."  Our  statute 
provides  that  the  jury  shall  assess  the  value  of  the  property. 
But  that  is  merely  as  the  basis  of  recovery  in  case  a  delivery 
cannot  be  had.  The  intent  was,  to  fix  the  value  that  the 
plaintiff  was  entitled  to  recover.  Thus,  in  case  of  a  lien  or 
other  special  interest,  the  value  to  be  fixed  would  be  the 
amount  of  that  lien  or  interest.     Booth  v.  Ableman,  20  Wis. 


340  CASES  ON  DAMAGES. 

21.  And  although,  in  strict  law,  the  plaintiff  is  the  general 
owner  of  the  property,  yet,  when  it  is  once  settled  that  he 
ought  not  to  recover  the  value  it  has  received  from  the  de- 
fendant's labor,  the  application  of  the  rule  would  seem  to 
place  him  upon  substantially  the  same  footing  with  the  owner 
of  a  special  interest,  so  far  as  ascertaining  the  value  is  con- 
cerned. Perhaps  the  best  way  in  such  a  case  would  be,  to 
direct  the  jury  to  find  the  actual  entire  value  of  the  property, 
and  to  find  specially  the  amount  to  which  its  value  had  been 
enhanced  by  the  defendant's  labor.  And  then,  in  case  of 
judgment  for  the  plaintiff,  it  would  be  in  the  alternative,  for 
a  delivery,  or,  if  that  could  not  be  had,  for  the  amount  of 
the  difference  between  the  two  suras  thus  found. 

It  is  quite  probable  that  this  question  was  not  distinctly 
presented  to  the  court  belOw.  But  it  seems  to  be  fairly  raised 
by  the  motion  for  a  new  trial,  on  the  ground  that  the  verdict 
was  against  the  law  and  the  evidence  ;  and  that  motion  ought 
to  have  been  granted. 

For  this  reason  the  judgment  must  be  reversed,  and  the 
cause  remanded  for  a  new  trial. 

By  the  Court.  —  Ordered  accordingly.1 

1  "  In  my  opinion,  it  is  immaterial  whether  the  property  is  taken  by 
mistake  or  intentionally,  unless  in  the  latter  case  the  taking  is  of  such 
a  character  as  to  make  the  doctrine  of  exemplary  damages  applicable. 
It  is  not  every  intentional  trespass  or  conversion  that  makes  a  case 
for  exemplary  damages.  If  a  man  takes  a  tree  from  my  land  by 
mistake,  I  am  damaged  just  as  much  as  though  he  took  it  intention- 
ally ;  and  if  in  case  of  mistake  I  ought  to  recover  only  the  value  of  the 
tree,  although  he  may  have  manufactured  it  into  costly  furniture,  for  the 
reason  that  the  value  of  the  tree  is  all  that  I  have  lost,  then  the  fact  that 
he  took  it  knowing  it  to  be  mine  ought  not  to  vary  the  rule  of  damages, 
for  the  plain  reason  that  my  loss  is  the  same  in  one  case  as  the  other." 
Paine,  J.,  in  Weymouth  v.  C  &  N.  W.  Ry.,  15  Wis.  550,  555  (1863). 


WINCHESTER  v.   CRAIG.  341 


WINCHESTER  v.   CRAIG. 

Michigan,  1876.     33  Mich.  205. 

Marston,  J.1  Winchester  brought  an  action  of  trover  to 
recover  damages  for  the  conversion  by  defendants  of  a 
quantity  of  pine  saw-logs. 

The  court  charged  the  jury  that  if  they  found  no  wilful 
wrong  on  the  part  of  the  defendants,  the}'  might  award  as 
damages  the  value  of  the  property  where  it  was  taken,  viz. : 
one  dollar  and  fifty  cents  per  thousand,  together  with  the 
profits  which  might  have  been  derived  from  its  value  in  the 
ordinary  market,  or  that  they  might  take  the  market  value 
at  Toledo,  deduct  precisely  the  sum  defendants  expended  in 
bringing  it  to  that  market  and  putting  it  in  condition  for 
sale,  and  award  the  difference  between  these  two  sums,  with 
interest,  in  either  case,  from  the  time  the  conversion  took 
place ;  and  refused  to  charge  that  the  plaintiff  could  recover 
as  damages  the  price  for  which  the  logs  were  sold  in  Toledo. 

The  finding  of  the  jury,  as  appears  from  the  printed 
record,  was  as  follows  :  "  The  defendants  cut  the  timber 
on  the  land  of  Ward  by  mistake  ;  the  quantity  cut  was  one 
million  ninety-three  thousand  seven  hundred  and  eightj'-six 
feet ;  the  value  on  the  land  after  it  was  cut  was  two  dollars 
per  thousand  feet ;  the  value  at  Toledo,  and  for  which  the 
defendants  sold  the  timber,  was  twelve  dollars  per  thousand  ; 
the  expenses  of  the  defendants  on  the  timber  in  cutting  and 
removing  the  same  to  Toledo,  nine  dollars  and  thirty-seven 
cents  per  thousand  ;  "  and  they  assessed  the  plaintiff's  dam- 
ages at  the  sum  of  three  thousand  six  hundred  and  thirty-one 
dollars  and  forty  cents. 

It  will  thus  be  seen  that  the  only  question  raised  by  this 
record  is,  where  parties  by  mistake  cut  timber  upon  the  lands 
of  another,  and  at  their  own  expense  transport  it  to  market 

1  Part  of  the  opinion  is  omitted. 


342  CASES   ON  DAMAGES. 

and  sell  it,  whether  the  plaintiff  in  an  action  of  trover  can 
recover  as  damages  the  market  value  at  the  time  and  place 
where  it  was  sold. 

An  examination  of  the  authorities  bearing  upon  this  ques- 
tion shows  that  they  are  not  in  harmony,  and  that  the  courts 
have  not  always  agreed  as  to  the  proper  measure  of  damages 
in  this  class  of  cases.  Some  courts  have  held,  in  cases  like 
the  present,  that  the  plaintiff  could  recover  as  damages  the 
value  of  the  logs  at  any  place  to  which  they  were  taken  and 
sold  or  converted,  while  others  have  held  such  a  measure  of 
damages  applicable  only  in  cases  where  there  was  fraud,  vio- 
lence, or  wilful  negligence  or  wrong,  and  that  where  none  of 
these  elements  appeared,  but  on  the  contrary  the  defendants 
had  acted  in  entire  good  faith,  and  had  by  their  labor  and 
skill  materiall}'  enhanced  the  value  of  the  property  converted, 
the  plaintiff  could  not  recover  such  enhanced  value.  In  this 
last  class  of  cases  the  decisions  are  not  uniform  as  to  whether 
the  value  of  the  property  when  first  severed  from  the  realty, 
as  in  cases  of  timber  or  coal  where  this  question  has  arisen, 
or  the  value  in  its  original  condition,  with  such  other  damage 
to  the  realty  as  the  injury  may  have  caused,  would  constitute 
the  proper  measure. 

It  is  apparent  upon  examination  that  there  is  no  fixed, 
definite  measure  of  damages  applicable  in  all  cases  of  con- 
version of  property  ;  and  while  the  general  rule  undoubtedly 
is,  in  ordinary  cases,  that  the  full  value  of  the  property  at 
the  time  and  place  of  it3  conversion,  together  with  interest 
thereon,  is  the  correct  measure  of  damages  in  actions  of 
trover,  yet,  as  was  said  in  Northrup  v.  McGill,  27  Mich.  238, 
"this  rule  yields,  when  the  facts  require  it,  to  the  principle 
on  which  the  rule  itself  rests,  namely :  that  the  recovery  in 
trover  ought  to  be  commensurate,  and  only  commensurate  with 
the  injury,  whether  that  injury  be  greater  or  less  in  extent  than 
the  full  value  of  the  property  and  interest."  Indeed,  the 
language  here  quoted  is  but  an  application  to  actions  of  trover 
of  the  general  rule  as  repeatedly  declared  in  this  State,  viz. : 
that  except  in  those  actions  where  punitory  or  exemplary 


WINC HESTER  v.   CRAIG.  343 

damages  ma}'  be  given,  and  those  whose  principal  object  is 
the  establishment  of  a  right,  and  where  nominal  damages 
may  be  proper,  the  only  just  theory  of  an  action  for  damages, 
and  its  primary  object,  are  that  the  damages  recovered  shall 
compensate  for  the  injury  sustained.  See  Allison  v.  Chan- 
dler, 11  Mich.  542;  Warren  v.  Cole,  11  Mich.  265;  Daily 
Post  Co.  v.  McArthur,  16  Mich.  447. 

It  is  somewhat  difficult  to  conceive  why,  upon  principle, 
this  rule  should  not  be  applied  in  its  fullest  extent  to  cases 
like  the  present.  The  cases,  it  is  believed,  all  agree  that 
punitory  or  exemplary  damages  are  never  given  or  allowed  in 
cases  where  the  defendant  has  acted  in  entire  good  faith,  under 
an  honest  belief  that  he  had  a  legal  right  to  do  the  act  com- 
plained of,  although,  even  in  such  cases,  he  would  be  conclu- 
sively held  to  have  contemplated,  and  the  plaintiff  would  be 
permitted  to  recover,  all  the  damages  which  legitimately  fol- 
lowed from  his  illegal  act,  whether  in  fact  he  actually  contem- 
plated that  such  damages  would  follow  or  not.  Such  damages, 
however,  would,  in  no  just  sense  of  the  term,  be  held  as  puni- 
tory or  exemplary ;  they  would  be  but  the  actual  damages 
which  the  plaintiff  had  suffered  from  the  wrongful  act  of  the 
defendant.  Such  then  being  the  general  rules  applicable  in 
cases  even  of  active,  aggressive  wrongs,  what  is  there  in  this 
case  to  make  it  an  exception  ? 

It  does  not  require  any  argument,  and  I  shall  attempt  none, 
to  prove  that  the  pecuniary  injury  sustained  by  the  plaintiff, 
from  the  trespass  complained  of,  falls  far  short  of  the  value  of 
these  logs  at  Toledo  ;  and  that  to  award  the  value  at  the  latter 
place  as  the  measure  of  damages  would  be  much  more  than 
compensation,  and  would,  although  under  a  different  name, 
be  but  awarding  exemplar}'  damages,  and  that,  too,  in  a  case 
where  upon  principle  the  defendants  had  been  guilty  of  no 
act  calling  for  such  a  punishment. 

It  is  also  clear  beyond  question  that  had  the  plaintiff  com- 
menced any  other  form  of  action  to  recover  damages  for  the 
injury  which  he  sustained,  he  could  not  in  such  action  recover 
the  market  value  of  the  logs  at  Toledo.     It  is  very  evident, 


344  CASES   ON  DAMAGES. 

therefore,  that  the  right  of  the  plaintiff  to  recover  the  value  at 
Toledo  depends  entirely  upon  the  particular  form  of  action 
adopted  in  this  case ;  as,  in  any  other,  where  the  defendants 
had  acted  honestly,  he  could  only  recover  the  amount  of  the 
actual  injury  sustained. 

Passing  for  the  present  the  adjudged  cases,  I  can  see  no 
good  reason  or  principle  why  the  measure  of  damages  in 
actions  of  trover  should  be  different  from  that  in  other  actions 
sounding  in  tort ;  and  to  hold  that  there  is  such  a  distinction  is 
to  permit  the  form  of  the  action,  rather  than  the  actual  injury 
complained  of,  to  fix  the  damages.  This  would  be  giving  the 
form  of  action  a  prominence  and  controlling  influence  to  which 
it  is  in  no  way  entitled,  and  would  be  permitting  the  plaintiff, 
b}*  the  adoption  of  a  particular  remed\T,  to  increase  the  dam- 
ages at  pleasure,  and  that  to  an  extent  which  would  far  more 
than  compensate  him  for  the  injury  which  he  sustained,  and 
would  also  be  a  positive  wrong  to  the  defendants.  Such  a 
doctrine,  if  carried  out  to  its  logical  conclusion,  and  applied  to 
many  cases  which  might  arise,  would  be  to  allow  the  plaintiff 
damages  so  far  in  excess  of  the  injury  which  he  sustained  as 
to  cause  us  to  doubt  the  wisdom  of  any  rule  which  would  thus 
sanction  a  greater  wrong  in  an  attempt  to  redress  a  lesser. 

Let  us  suppose,  by  way  of  illustration,  one  or  two  cases 
which  might  easily  arise :  a  party  acting  in  entire  good  faith 
enters  upon  the  lands  of  another  by  mistake,  cuts  a  quantity 
of  oak  standing  thereon,  and  manufactures  it  into  square 
timber ;  this  he  ships  to  Quebec,  where  he  sells  it  at  a  price 
which,  as  compared  with  the  value  of  the  standing  timber, 
renders  the  latter  insignificant.  Or,  suppose  the  owner, 
instead  of  selling  such  timber  at  Quebec,  ships  the  same  to 
some  European  port,  and  there  sells  it  at  a  still  greater 
advance.  Or,  suppose  b}-  mistake  he  cuts  a  quantity  of  long 
timber,  suitable  for  masts,  and  forwards  it  to  Tonawanda, 
or  New  York,  and  there  sells  it.  Now,  in  either  of  these 
cases,  would  it  be  just  to  permit  the  owner  of  the  standing 
timber,  in  an  action  of  trover,  to  recover  the  value  at  which 
it  was  sold  ?    Would  the  price  for  which  it  sold  be  the  amount 


WINCHESTER  v.   CRAIG-  345 

of  the  actual  damage  which  he  sustained  from  the  original 
cutting?  The  price  which  it  brought  in  the  market  was 
almost  wholly  made  up  of  the  cost  and  expense  of  manufac- 
turing and  getting  it  there,  no  part  of  which  cost  or  expense 
was  borne  by  the  plaintiff.  "Why,  then,  should  the  plaintiff 
recover  this  increased  value,  no  part  of  which  he  contributed 
to  in  any  way?  Certainly  not  as  compensation  for  the  in- 
jury sustained  by  him,  because  he  sustained  no  such  injury. 
Neither  could  it  be  for  the  purpose  of  punishing  the  defend- 
ants, because  they  have  committed  no  act  calling  for  such  a 
punishment.  It  can  only  be  placed  upon  the  arbitrary  ground 
that  in  this  form  of  action  the  plaintiff  can  recover  the  full 
value  of  his  property  at  any  place  he  may  find  it,  or  trace  it  to. 

Then,  again,  there  is  no  uniformity  in  such  a  rule.  One 
man  cuts  timber,  but  does  not  remove  it ;  another  cuts  and 
removes  it  a  short  distance,  adding  but  little  to  its  original 
value  ;  while  another  cuts  and  removes  it  a  long  distance, 
increasing  its  value  thereby  an  hundred  fold.  Separate  actions 
are  brought  against  each,  the  plaintiff  in  each  case  claiming 
to  recover  the  value  at  the  place  to  which  the  timber  was 
taken.  Now,  it  is  very  evident  that,  although  the  value  of 
the  standing  timber  in  each  case  was  the  same,  and  the  actual 
injury  to  the  plaintiff  in  each  case  the  same,  the  verdict  would 
be  very  different,  and  the  party  who  had  in  good  faith  done 
the  most,  and  spent  the  most  mone}',  in  giving  the  timber  any 
real  value,  would  be  punished  the  greatest.  In  fact,  by  in- 
creasing its  value  he  would  be  but  innocently  increasing  to  a 
corresponding  amount  what  he  would  have  to  pay  by  way  of 
damages.  In  other  words,  such  a  defendant,  by  his  labor 
and  the  means  which  he  expended  in  bringing  the  property 
to  market,  has  given  it  nearly  all  the  value  it  possesses ;  and 
when  he  is  sued  and  responds  in  damages  to  the  amount  of 
such  increased  value,  he  has  then  paid  just  twice  the  actual 
market  value  of  the  property  in  its  improved  condition,  less 
the  value  of  the  original  timber  standing;  once  in  giving  it 
its  value,  and  then  paying  for  it  in  damages  according  to  the 
very  value  which  he  gave  it. 


346  CASES  ON  DAMAGES. 

It  may  be  said,  however,  that  all  these  supposed  cases  are 
exceptional  and  extreme  ;  this  may  be  true,  but  in  testing  a 
supposed  rule  of  law,  we  have  a  right  to  apply  it  to  extreme 
cases  for  the  purpose  of  testing  its  soundness  ;  because  by  so 
doing,  if  we  find  that  when  carried  out  it  would  lead  to  gross 
injustice,  and  would  not  at  the  same  time  subserve  any  useful 
purpose,  but  would  be  in  violation  of  other  well-settled  legal 
principles,  we  then  have  a  right  to  discard  it  as  being  unsound, 
not  based  upon  sound  reason  or  justice,  and  therefore  contrary 
to  the  doctrines  of  the  common  law. 

It  might  also  be  said,  in  answer  to  some  of  the  cases  sup- 
posed, that  the  plaintiff  could  not  count  upon  a  conversion 
which  took  place  in  some  other  State.  This  I  am  inclined  to 
think  would  be  correct ;  but  in  this  case  the  plaintiff  does 
claim  to  recover  for  a  conversion  which  took  place  beyond  the 
limits  of  this  State.  I  have  therefore  only  carried  the  doctrine 
contended  for  a  little  farther. 

We  need  not,  however,  go  beyond  the  boundaries  of  this 
State  to  imagine  cases  almost  as  glaringly  unjust  as  those 
already  supposed  ?  indeed,  the  evidence  in  this  case  showed 
that  while  the  value  of  the  standing  timber  was  one  dollar  and 
fifty  cents  per  thousand,  the  value  of  the  logs  in  Detroit  was 
twelve  dollars  per  thousand ;  and  cases  may  easily  be  supposed 
where  the  value  would  be  much  greater. 

There  is  another  class  of  cases  where  the  doctrine  which 
plaintiff  seeks  to  have  applied  would  work  gross  injustice : 
a  person  honestly  and  in  good  faith  obtains  possession  of 
some  young  animal ;  he  may  have  purchased  it  from  some 
person  supposed  to  have  a  good  title  to  it,  but  who  in  fact 
did  not ;  or  he  may  have  purchased  it  at  a  judicial  sale  where, 
on  account  of  some  technical  defect,  the  title  did  not  pass ; 
or  it  may  be  through  a  case  of  mistaken  identit}T  he  has 
claimed  to  be  the  owner,  whereas  in  truth  and  fact  he  was  not. 
He  retains  possession,  feeding  and  taking  care  of  the  animal, 
until  in  process  of  time  it  becomes  full  grown  and  immensely 
more  valuable.  This  time  may  be  longer  or  shorter,  depend- 
ing very  much  upon  the  kind  of  animal.     If  a  pig,  but  a  short 


WINCHESTER  v.   CRAIG.  347 

time  would  be  required ;  if  a  calf  or  colt,  a  longer.  The 
original  owner,  Laving  at  length  discovered  his  property, 
demands  possession,  which  being  refused,  he  brings  trover  to 
recover  the  value.  Now,  most  assuredly,  in  an}'  of  these 
cases,  the  extent  of  the  injury  which  the  plaintiff  sustained 
would  not  be  the  then  value  of  the  animal.  He  has  not  fed 
it,  taken  care  of  it,  or  run  any  of  the  risks  incidental  to  the 
raising  of  stock  ;  all  this  has  been  done  by  another.  Why, 
then,  should  he  recover  this  increased  value  ?  And  why  should 
the  result  of  the  labor,  care,  and  expense  of  another  thus  be 
given  to  him?  True  it  is,  that  the  amount  involved  in  these 
cases  is  not  so  large,  but  the  principle  is  the  same. 

It  is  sometimes  said  that  the  effect  of  the  view  which  we 
have  taken  would  be  to  compel  a  part}*  to  sell  and  dispose  of 
property  which  he  desired  to  retain  as  an  investment,  at  what 
he  might  consider  an  inadequate  price,  and  at  a  time  when  he 
would  not  have  sold  it.  This  may  be  true,  yet  it  is  no  more 
than  what  happens  daily,  and  that  under  circumstances  much 
more  aggravating.  Take  the  case  of  a  wilful  trespasser  :  he 
cuts  the  timber  of  another  into  cord  wood  and  burns  it ;  or  he 
takes  his  grain  and  feeds  it ;  or  cattle,  which  the  owner  prizes 
very  highly,  and  butchers  them.  In  all  these  cases  the  owner 
has  lost  his  property,  and  the  law  cannot  restore  it ;  the  law  can- 
not do  complete  justice  ;  it  cannot  fully  and  completely  protect 
and  guard  the  rights  and  feelings  of  others  ;  it  can  but  ap- 
proximate to  it ;  and  because  the  owner  in  this  way  may  be 
compelled  to  part  with  his  property,  and  thus  a  wrong  be 
done  him,  it  would  not  improve  matters  to  inflict  a  much 
greater  wrong  upon  another  equally  entitled  to  protection,  in 
order  that  the  first  sufferer  might  be  unduly  recompensed 
thereby.  The  law  rather  aims,  so  far  as  possible,  to  protect 
the  plaintiff,  but  at  the  same  time  it  has  a  due  regard  to  the 
rights  of  the  defendants,  and  it  will  not  inflict  an  undue  or 
unjust  punishment  upon  them,  in  cases  where  they  are  not 
deserving  it,  as  a  means  of  righting  an  injury,  especially 
where  it  would  much  more  than  compensate  the  owner  for 
the  injury  which  he  sustained. 


348  CASES  ON  DAMAGES. 

In  this  case  each  has  an  interest  in  the  logs ;  the  plaintiff 
as  assignee  of  the  original  owner  ;  the  defendant  by,  in  good 
faith,  largely  increasing  their  value.  Each  should  be  pro- 
tected in  his  rights,  and  thus  as  nearly  as  possible  substantial 
justice  be  done.  To  allow  plaintiff  to  recover  what  he  here 
seeks  would  be  to  break  down  all  distinction  between  the 
wilful  and  involuntary  trespasser,  —  a  distinction  which  is 
based  upon  sound  legal  principles,  and  which  is  applied  in  all 
other  forms  of  action. 

What  we  have  here  said  must  not  be  considered  as  having 
an}-  application  in  cases  where  the  trespass  or  wrong  com- 
plained of  was  wilful  or  negligent.  We  are  not  yet  prepared 
to  say  that  the  wilful  trespasser  can  derive  any  advantage 
whatever  from  his  own  wrong.  On  the  contra^,  there  is  sound 
reason  for  holding  that  the  owner  in  such  cases  may  reclaim 
his  property  wherever  and  in  whatever  shape  he  may  find  it. 

The  court  under  one  branch  of  the  charge  instructed  the 
jury  to  allow  the  market  value  at  Detroit,  or  Toledo,  less  the 
sum  of  money  which  defendants  expended  in  bringing  it  to 
market.  This,  we  think,  was  as  favorable  as  the  plaintiff 
had  any  right  in  this  case  to  expect.  This  was  allowing  the 
plaintiff  more  than  the  value  of  the  timber  when  it  was  first 
severed  from  the  realty.  It  did  not  permit  the  defendants  to 
recover  any  profit  upon  what  they  had  done,  but  protected 
them  to  the  extent  of  the  advances  they  had  made  ;  and  this, 
we  think,  was  correct. 

There  might,  however,  be  cases  where  this  rule  would  not 
apply,  where  the  market  value  did  not  cover  the  cost  of  cut- 
ting and  taking  it  to  market,  and  cases  where  it  was  not  sold. 
In  such  cases  the  plaintiff  would  be  entitled  to  recover  the 
value  when  the  propert}'  was  first  severed  from  the  realty 
(Greeley  v.  Stilson,  27  Mich.  154),  and  was  thus  in  a  shape 
where  it  could  be  converted,  together  with  any  profits  which 
might  be  derived  from  its  value  in  the  ordinary  market,  with 
interest  thereon.  If  any  special  damage  is  claimed  beyond 
this,  either  to  the  inheritance  or  otherwise,  it  must  be  sought 
in  some  other  and  more  appropriate  form  of  action. 

Judgment  affirmed. 


TUTTLE   v.  WHITE.  349 


TUTTLE  v.  WHITE. 

Michigan,  1881.     46  Mich.  485. 

Marston,  C.J.  The  action  in  this  case  was  trover.  The 
defendants  purchased  the  logs  in  question  from  Sheridan  & 
Hamilton,  who  cut  them  upon  plaintiff's  lands,  and  who 
were  unquestionably  trespassers  in  so  doing.  The}',  Sheri- 
dan &  Hamilton,  made  no  claim  or  pretence  of  having  cut 
the  logs  under  circumstances  tending  even  to  show  good 
faith  on  their  part.  Sheridan  &  Hamilton  sold  the  logs  to 
defendants,  afloat  in  Black  Creek.  It  was  claimed,  and  we 
shall  so  assume,  that  defendants  in  making  the  purchase 
acted  in  entire  good  faith ;  they  afterwards  run  the  logs 
into  Flat  River  and  there  sold  them  at  an  advanced  price. 
The  material  question  relates  to  the  rule  laid  down  as  to 
the  proper  measure  of  damages.  The  court  charged  the 
jury  in  substance,  that  if  the  defendants  in  purchasing  these 
logs  acted  in  good  faith,  the  rule  would  be  either  the  value 
of  the  logs  where  they  were  cut  on  the  ground,  with  the  ad- 
dition of  any  profit  there  might  be  in  handling  them  and 
bringing  them  to  Flat  River,  or  the  value  at  Flat  River 
deducting  the  cost  of  bringing  them  there. 

We  are  of  opinion  that  the  facts  in  this  case  did  not  war- 
rant the  charge  as  thus  given.  These  defendants  purchased 
from  trespassers,  and  if  they  acted  in  good  faith  in  so  doing, 
all  they  could  ask  would  be  protection  in  what  they  should 
expend  in  money  or  labor  thereon  thereafter.  A  person 
however  in  purchasing  personal  property  runs  his  risk  as  to 
the  title  he  is  acquiring,  and  if  he  is  unfortunate  enough  to 
purchase  from  a  trespasser  or  one  who  has  no  title  and  can 
give  none,  he  must  sutler  the  loss  or  look  to  his  vendor.  To 
hold  otherwise  would  be  to  give  the  trespassers  the  benefit 
of  their  own  wrong,  contrary  to  all  the  authorities.  If 
these  defendants  had  only  made  a  partial  payment  for  the 


350  CASES  ON  DAMAGES. 

logs  under  their  contract  of  purchase,  and  the  plaintiff 
herein  was  limited  in  his  recovery  to  the  value  of  the  logs 
when  first  severed  from  the  land,  then  defendants  would  be 
the  gainers  ;  they  would  have  the  benefit  of  the  trespasser's 
labor,  and  yet  the  latter  could  not  maintain  an  action  to 
recover  the  amount  thereof,  or  the  balance  of  the  contract 
price.  The  conversion  by  these  defendants  took  place  when 
they  first  took  charge  or  control  over  these  logs  in  Black 
Creek,  and  the}-  should  respond  in  damages  according  to  the 
value  at  that  time.  The  same  reasons  do  not  exist  in  this 
case  to  protect  these  defendants  that  did  in  Winchester  v. 
Craig,  33  Mich.  210,  and  Wetherbee  v.  Green,  22  Mich.  311. 

There  are  very  many  cases  where  the  value  of  the  timber 
standing,  or  when  first  severed  from  the  soil,  would  be  but 
nominal,  and  to  give  wilful  trespassers,  or  those  to  whom 
they  may  sell,  the  benefit  of  any  increased  value  put  upon 
it  by  the  original  wrong-doer,  and  confine  the  owner  to  the 
nominal  value,  would  but  encourage  the  commission  of  acts 
of  trespass,  and  tend  to  make  purchasers  at  least  careless  as 
to  the  title  they  were  acquiring.  It  is  eas\r  for  any  one  to 
claim  that  he  has  purchased  property  in  entire  good  faith, 
and  very  difficult  in  many  cases  to  establish  the  contrary, 
and  if  one  claiming  to  be  such,  is  protected  to  the  extent 
of  the  increased  value  he  may  have  in  good  faith  added  to 
the  property,  this  is  all  he  can  fairly  claim  under  the  law. 
This  rule  in  effect  was  held  in  Isle  Royale  Mining  Co.  v. 
Hertin,  37  Mich.  332,  and  much  that  was  there  said  is 
equally  applicable  in  the  present  case.  We  have  not  over- 
looked the  case  relied  upon,  among  others  cited,  of  Railway 
Co.  v.  Hutchins,  32  Ohio  St.  584.  We  have  heretofore  had 
occasion  to  examine  the  many  cases  there  cited,  and  they 
do  not  lead  us  to  any  conclusion  other  than  the  one  here 
arrived  at. 

We  are  of  opinion  that  the  judgment  should  be  reversed 
with  costs  and  a  new  trial  ordered.1 

1  "  It  may  be  that  if  these  owners  had  found  their  wood  in  the  hands 
of  the  trespassers,  it  might  have  been  retaken,  or  its  value  as  cord  wood 


TUTTLE   v.   WHITE.  351 

recovered  ;  but  if  so,  it  would  be  upon  the  principle  '  in  odium  spoliatoris  ; ' 
the  thief  could  gain  nothing  by  his  own  wrong,  and  therefore  the  re- 
sults of  his  labor  go  to  the  owner  of  the  property.  But  this  principle  can- 
not apply  where  an  innocent  purchaser  comes  into  the  case,  for  the  simple 
reason  that  he  has  done  no  wrong. 

"  It  is  very  true  that  the  wilful  trespasser  or  thief  can  convey  no  title 
to  one  to  whom  he  sells,  however  innocent  the  purchaser  may  be.  But 
the  question  right  here  is,  what  does  '  title '  in  this  connection  mean  ? 
The  original  owner  has  the  '  title '  to  his  timber,  and,  as  against  the  thief, 
the  title  to  the  results  of  the  thief's  labor.  The  wrong-doer,  as  it  were, 
being  estopped  from  setting  up  any  claim  by  virtue  of  the  wrong  he  has 
done.  Against  the  innocent  purchaser  from  the  thief,  the  original  owner 
still  has  the  '  title '  to  his  timber,  but  by  virtue  of  what  does  he  now  have 
'  title  '  to  the  thief's  labor  ?  The  estoppel,  so  to  call  it,  being  created  by 
fraud  or  wrong,  exists  only  against  the  one  guilty  of  that  fraud  or  wrong, 
which  the  purchaser  is  not,  and  while  it  is  effectual  against  the  wrong- 
doer, the  reason  of  it  does  not  exist  as  against  the  innocent  man,  as  to 
whom  it  therefore  fails.  As  Judge  Cooley  says,  it  does  not  comport  with 
notions  of  justice  and  equity,  that  against  those  who  have  done  no  wrong, 
these  owners  should  recover  three  times  the  value  of  what  they  have  lost. 
They  have  never  spent  one  cent  of  money,  nor  one  hour  of  labor,  in 
changing  this  timber  worth  one  dollar,  into  cord  wood  worth  three.  All 
this  was  done  by  some  one  else,  and  why  should  the  owners  recover  for 
it  ?  If  they  are  compensated  for  what  they  have  lost,  and  all  they  have 
lost,  they  are  certainly  fully  paid.  Woolsey  v.  Seeley,  Wright,  360.  And 
this  is  all  they  should  be  allowed  to  recover."  Wright,  J.,  in  Kailway  v. 
Hutchins,  32  Oh.  St.  571,  584  (1877). 


CHAPTER  X. 

DAMAGES   FOR   NON-PECUNJARY   INJURIES. 


Section  1. — Pain  and  Inconvenience. 

PENNSYLVANIA  RAILROAD   v.  ALLEN. 

Pennsylvania,  1866.     53  Pa.  276. 

Strong,  J.1  The  argument  addressed  to  us  on  behalf  of 
the  plaintiffs  in  error,  is  one  which  has  often  been  urged, 
but  always  unsuccessfully.  It  is  said  the  plaintiff  below  is 
entitled  to  no  more  than  compensation  measured  by  the 
pecuniary  value  of  the  injury  he  had  sustained  ;  that  pain  and 
personal  suffering  have  no  pecuniary  value  ;  that  there  is  no 
standard  by  which  they  can  be  estimated  ;  and  that  if  a  jury 
are  allowed  to  take  them  into  consideration  in  assessing 
damages,  the}T  must  guess  both  at  the  intensity  of  the  pain 
and  at  the  sum  which  would  be  a  compensation  for  it. 

Hence,  it  is  urged  that  inquiries  into  these  subjects  are  too 
refined  for  a  jury,  or  for  any  human  tribunal,  and  that  com- 
pensation ought  to  be  allowed  for  nothing  that  cannot  be 
measured  b\'  some  defined  rule.  It  must  be  admitted,  that 
it  is  easier  to  answer  this  by  authorities  than  it  is  by  reason- 
ing. The  theory  of  a  jury  trial  undoubtedly  is,  that  it 
accomplishes  certain  results  by  certain  rules.  Ordinarily, 
it  measures  damages  according  to  some  known  and  recog- 
nized standard.  That  standard  is,  in  most  cases,  a  common 
and  acknowledged  measure  adopted  as  a  lesson  of  human 
experience.     But  where  there  is  and  can  be  no  such  experi- 

1  The  opinion  only  is  given :  it  sufficiently  states  the  case. 


PENNSYLVANIA  RAILROAD  v.   ALLEN.  353 

ence,  or  none  that  can  be  known,  damages  might  as  well  be 
determined  by  the  casting  of  dice  as  by  the  verdict  of  a  jury. 
It  is  conceded,  they  must  be  estimated  in  money.  But  what 
is  the  pecuniary  worth  of  a  pain?  If  it  must  be  determined, 
it  is  either  nothing,  or  it  is  variable  according  to  the  conjec- 
ture of  those  who  are  required  to  estimate  it ;  and  they  must 
guess  not  only  its  intensity,  but  its  value  in  dollars  and 
cents.  It  would  seem  that  judicial  tribunals  ought  not  to  be 
under  the  necessity  of  deciding  anything  so  indeterminable. 
Damages,  if  recoverable  at  all,  ought  to  be  such  as  can  be 
measured  by  some  comprehensible  rule,  —  some  rule  that  can 
be  applied  to  human  affairs. 

Notwithstanding  all  this,  however,  it  is  undoubtedly  true, 
that  in  some  actions  for  personal  injuries,  juries  in  estimating 
the  damages  are  to  take  into  consideration  the  personal  suf- 
fering caused  by  the  wrong.  So  are  the  decisions.  In  cases 
of  libel  or  slander,  of  wilful  torts  to  the  person,  and  in 
cases  of  negligence  other  than  those  that  are  breaches  of 
contract,  in  cases  of  negligence  which  causes  a  personal 
injury,  it  has  often  been  held  that  a  jury  may  take  into  con- 
sideration the  bodily  and  mental  pain  attendant  on  the 
injury.  It  must  be  admitted  that  it  is  no  more  possible  to 
determine  the  pecuniary  value  of  pain,  in  this  class  of  cases, 
than  in  such  a  one  as  we  now  have  before  us.  But  such 
actions  are  not  remedies  sought  for  broken  contracts.  The 
wrongs  complained  of  bear  a  nearer  resemblance  to  a  public 
offence.  In  assessing  damages  in  such  actions,  juries  are 
always  allowed  a  larger  license  than  in  actions  on  contracts, 
and  with  some  reason.  In  this  State,  at  least,  it  seems  to  be 
the  doctrine,  that  the  circumstances  attending  such  injuries 
ma}'  warrant  an  assessment  of  damages  beyond  those  that 
are  mereby  compensatory.  It  might  well  be,  therefore,  that 
a  different  rule  should  be  applied  to  them  from  that  which 
should  be  applied  in  suits  on  broken  contracts. 

Yet  it  is  not  to  be  denied  that  the  authorities  recognize  no 
such  difference.  In  this  State  the  question  has  never  directly 
arisen  ;  but  I  know  of  no  decision  anywhere,  that  a  passen- 

23 


354 


CASES  ON  DAMAGES. 


ger  personalty  injured  by  the  neglect  of  a  carrier  to  transport 
hirn  safely,  has  been  denied  compensation  for  the  pain  caused 
by  the  injury.  Such  compensation  is  denied  to  one  who  sues 
for  an  injury  to  his  relative  rights ;  but  the  immediate  suf- 
ferer has  been  held  entitled  to  it  whenever  the  question  has 
been  raised.  And  that  such  is  the  law  is  shown  b}r  the  pre- 
cedents. Chitty,  in  vol.  ii.  of  his  work  on  Pleading,  page  647, 
gives  the  form  of  a  declaration  by  a  passenger  against  the 
owners  of  a  stage-coach  for  overloading  and  improperly  driv- 
ing it,  whereby  the  coach  was  overturned,  and  the  plaintiff's 
leg  was  broken.  In  each  of  the  counts,  the  great  pain  of  the 
plaintiff  is  laid  as  a  substantial  injury.  And  so  far  as  any 
decisions  of  the  English  courts  are  to  be  found  upon  this 
subject,  they  recognize  the  right  of  a  plaintiff  to  damages  for 
such  a  cause.  In  Theobald  v.  The  Railway  Passenger  As- 
surance Co.,  10  Ex.  45,  where  it  appeared  that  the  de- 
fendant had  undertaken  to  pay  a  reasonable  compensation 
for  any  personal  injury  received  while  travelling  in  a  railway 
car,  it  was  held  by  the  Court  of  Exchequer  that  the  expense, 
pain,  and  loss  of  the  plaintiff  were  proper  subjects,  and  the 
only  proper  subjects  to  be  considered  in  assessing  the  dam- 
ages. In  Morse  v.  The  Auburn  &  Syracuse  Railroad  Co., 
10  Barb.  621,  and  in  Curtis  v.  The  Rochester  and  Syracuse 
Railroad  Co.,  20  Id.  283,  it  was  decided  that  in  actions 
against  passenger  carriers  for  negligence  resulting  in  personal 
hurts,  bodily  pain  and  suffering  are  part  and  parcel  of  the 
injury  for  which  the  injured  party  is  as  much  entitled  to  com- 
pensation in  damages  as  for  the  loss  of  time  and  the  outlay 
of  mone}7.  These  cases  were  reviewed  by  the  Court  of  Ap- 
peals in  Ransom  v.  The  New  York  and  Erie  Railroad  Co.,  1 
Smith,  415,  and  the  doctrine  asserted  in  them  reasserted.  I 
do  not  find  that  it  has  been  even  doubted  in  an}r  court. 
Juries  are  required  to  estimate,  in  the  best  wa}r  the}'  can, 
what  is  a  just  recompense  for  pain  suffered.  Though  we 
have  no  decisions  in  this  State,  we  have  dicta  of  judges 
sufficient  to  indicate  the  same  opinion  of  the  law.  In  Laing 
v.  Colder,  8  Barr,  479,  which  was  an  action  against  a  passen- 


PENNSYLVANIA  RAILROAD  v.   ALLEN.  355 

ger  carrier  for  negligence,  whereby  the  plaintiffs  arm  was 
broken  whilst  he  was  travelling  in  a  railroad  car,  Judge  Bell, 
in  delivering  the  opinion  of  this  court,  remarked,  that  "in- 
juries to  the  person  consist  in  the  pain  suffered,  bodily  or 
mental,  and  in  the  expenses  and  loss  of  property  they  occa- 
sion. In  estimating  damages,  the  jury  may  consider  not 
only  the  direct  expenses  incurred  b_y  the  plaintiff,  but  the 
loss  of  his  time,  the  bodily  suffering  endured,  and  any  incur- 
able hurt  inflicted,  —  for  these  may  be  classed  among  neces- 
sary results."  A  similar  remark  was-  made  by  the  present 
Chief  Justice  in  Pennsylvania  Railroad  Co.  v.  Kelly,  7 
Casey,  379.  Some  of  these  cases  recognize  the  difficulty  of 
applying  a  pecuniary  balm  to  suffering,  but  deny  that  this 
furnishes  any  reason  why  it  should  not  be  done.  It  must 
therefore  be  considered  as  a  rule  of  law,  that  in  actions  for 
personal  injuries,  sustained  by  a  passenger  in  consequence  of 
the  negligence  of  a  passenger  carrier,  plaintiffs  are  entitled 
to  recover  pecuniary  compensation  for  pain  suffered  ;  and 
that  juries  in  assessing  damages  may  consider  that  as  an  ele- 
ment. It  follows,  that  the  first  assignment  of  error  in  this 
record  cannot  be  sustained. 

The  second  relates  to  the  instruction  given  respecting  the 
mode  of  assessment.  Was  that  erroneous  ?  The  jury  were 
told  that  the  plaintiff  was  only  entitled  to  recover  the  pe- 
cuniary value  of  the  injuries  sustained,  and  that  in  the  ap- 
plication of  this  rule  to  the  question,  what  damages  should 
be  given  for  physical  pain  suffered,  they  must  exercise  their 
own  discretion,  governed  by  their  sense  of  justice  and  right, 
taking  care  not  to  indulge  in  their  imagination  or  sympathies, 
so  as  to  be  led  into  an  unjust  or  oppressive  assessment.  It  is 
difficult  to  see  how  more  precise  instructions  could  have  been 
given.  The  assessment  was  not  left  to  the  ungoverned  and 
unlimited  discretion  of  the  jury.  It  may  be  and  it  probably 
is  the  fact  that  the  damages  found  were  excessive  and  quite 
unreasonable.  There  must  always  be  danger  of  such  assess- 
ments, if  a  jury  is  at  liberty  to  fix  a  valuation  upon 
something  that  cannot  be  valued.     But  this  is  irremediable 


356  CASES  ON  DAMAGES. 

by  us.  The  only  palliation  that  remains  in  such  a  case  (it 
is  not  a  cure),  is  the  free  exercise  of  the  power  which  the 
Court  of  Common  Pleas  has  to  grant  new  trials. 

The  judgment  is  affirmed. 


CHICAGO  AND  ALTON  RAILROAD  v.   FLAGG. 

Illinois,  1867.     43  111.  364. 

Lawrence,  J.1  This  was  an  action  on  the  case  brought 
b}T  the  appellee  against  the  railway  company  for  wrongfully 
expelling  him  from  one  of  its  trains.  It  was  urged  that,  as 
the  conductor  acted  in  good  faith,  and  without  violence  or 
insult,  and  there  is  no  proof  of  actual  damage  to  the  plaintiff, 
the  verdict  should  have  been  for  only  nominal  damages.  The 
verdict  was  for  one  hundred  dollars.  It  was  after  dark  when 
this  affair  occurred,  and  the  plaintiff  was  lame  and  had  two 
bundles  that  seemed  to  be  heavy.  In  order  to  reach  the 
station  or  village,  he  had  to  pass  over  a  covered  railway 
bridge  which  spanned  a  stream,  and  which  he  had  to  cross 
by  means  of  a  plank  walk  or  foot-path,  about  three  feet  wide, 
laid  down  upon  the  timbers.  The  only  light  came  from  be- 
low, and  from  the  ends  of  the  bridge.  For  a  stranger  laden 
with  bundles,  to  be  compelled  to  walk  through  a  dark  rail- 
way bridge  at  night,  on  a  narrow  path,  uncertain  as  to  when 
a  train  may  come,  and  liable  to  be  crushed  if  one  does  come, 
is  certainly  not  a  desirable  experience.  The  jury  had  the  right 
to  take  these  things  into  consideration,  and  as  the  plaintiff 
himself  had  been  guilty  of  no  delinquency,  and  was  anxious 
to  pay  his  fare,  and  as  his  legal  rights  were  violated  in 
expelling  him  from  the  train,  it  was  proper  for  the  jury  also 
to  consider,  not  only  the  annoyance,  vexation,  delay  and 
risk,  to  which  he  was  subjected,  but  also  the  indignity  done 
to  him  by  the  mere  fact  of  expulsion.  This  case  is  widely 
different  from  that  of  the  Chicago  and  Alton  R.  R.  Co.  v. 
Roberts,  40  111.  503.  We  cannot  say  the  damages  were 
excessive.  Judgment  affirmed. 

1  Part  of  the  opinion  is  omitted. 


BALT.  &  POTOMAC  R.  R.  v.  FIFTH  BAPTIST  CHURCH.      357 


BALTIMORE  AND  POTOMAC  RAILROAD  v.  FIFTH 
BAPTIST  CHURCH. 

United  States  Supreme  Court,  1883.     108  U.  S.  317. 

Action  in  the  nature  of  an  action  on  the  case  to  recover 
damages  for  the  discomfort  occasioned  by  the  establishment 
of  a  building  for  housing  the  locomotive  engines  of  a  railroad 
company  contiguous  to  a  building  used  for  Sunday-schools 
and  public  worship  by  a  religious  society. 

The  court  gave  the  following  charge  to  the  jury :  — 

"The  congregation  would  be  entitled  to  recover  damages 
(although  their  property  might  have  been  increased  in  value) 
because  of  the  inconvenience  and  discomfort  they  have  suf- 
fered from  the  use  of  the  shop.  The  congregation  has  the 
same  right  to  the  comfortable  enjoyment  of  its  house  for 
church  purposes  that  a  private  gentleman  has  to  the  comfort- 
able enjoyment  of  his  own  house,  and  it  is  the  discomfort 
which  i&  the  primary  consideration  in  allowing  damages." 

Field,  J.1  The  instruction  of  the  court  as  to  the  estimate 
of  damages  was  correct.  Mere  depreciation  of  the  property 
was  not  the  only  element  for  consideration.  That  might, 
indeed,  be  entirely  disregarded.  The  plaintiff  was  entitled 
to  recover  because  of  the  inconvenience  and  discomfort 
caused  to  the  congregation  assembled,  thus  necessarily  tend- 
ing to  destroy  the  use  of  the  building  for  the  purposes  for 
which  it  was  erected  and  dedicated.  The  property  might 
not  be  depreciated  in  its  salable  or  market  value,  if  the  build- 
ing had  been  entirely  closed  for  those  purposes  by  the  noise, 
smoke,  and  odors  of  the  defendant's  shops.  It  might  then, 
perhaps,  have  brought  in  the  market  as  great  a  price  to  be 
used  for  some  other  purpose.  But,  as  the  court  below  very 
properly  said  to  the  jury,  the  congregation  had  the  same  right 
to  the  comfortable  enjoyment  of  its  house  for  church  purposes 
that  a  private  gentleman  has  to  the  comfortable  enjoyment  of 
1  Part  of  the  opiuion  is  omitted. 


358  CASES  ON  DAMAGES. 

his  own  house,  and  it  is  the  discomfort  and  annoyance  in  its 
use  for  those  purposes  which  is  the  primary  consideration  in 
allowing  damages.  As  with  a  blow  on  the  face,  there  may 
be  no  arithmetical  rule  for  the  estimate  of  damages.  There 
is,  however,  an  injury,  the  extent  of  which  the  jury  may 
measure.  Judgment  affirmed. 


Section  2.  —  Mental  Suffering. 

MEREST  v.  HARVEY. 

Common  Pleas,  1814.     5  Taunt.  442. 

Trespass  for  forcibly  breaking  and  entering  the  plaintiff's 
close,  called  Brandon  Road  Breck,  part  of  Longford  Field, 
and  with  feet  in  walking,  and  with  dogs,  treading  down  and 
spoiling  the  plaintiff's  grass,  and  with  dogs  and  guns  search- 
ing, hunting,  and  beating  for  game  there,  and  doing  other 
wrongs.  The  cause  was  tried  before  Heath,  J.,  at  the  Nor- 
folk spring  assizes,  1814.  The  evidence  was,  that  in  Sep- 
tember the  plaintiff,  a  gentleman  of  fortune,  was  shooting  on 
his  own  manor  and  estate,  in  a  common  field  contiguous  to 
the  highway,  when  the  defendant,  a  banker,  a  magistrate, 
and  a  Member  of  Parliament,  who  had  dined  and  drank 
freely  after  taking  the  same  diversion  of  shooting,  passed 
along  the  road  in  his  carriage,  and,  quitting  it,  went  up  to 
the  plaintiff  and  told  him  he  would  join  his  part}',  which  the 
plaintiff  positively  declined,  inquired  his  name,  and  gave  him 
notice  not  to  sport  on  the  plaintiff's  land  ;  but  the  defendant 
declared  with  an  oath  that  he  would  shoot,  and  accordingly 
fired  several  times,  upon  the  plaintiffs  land,  at  the  birds 
which  the  plaintiff  found,  proposed  to  borrow  some  shot  of 
the  plaintiff,  when  he  had  exhausted  his  own,  and  used  very 
intemperate  language,  threatening,  in  his  capacity  of  a  magis- 
trate, to  commit  the  plaintiff,  and  defying  him  to  bring  any 
action.     The  witnesses  described  his  conduct  as  being  that 


MEREST  v.  HARVEY.  359 

of  a  drunken  or  insane  person.  The  plaintiff  conducted 
himself  with  the  utmost  coolness  and  propriety.  A  special 
jury  found  a  verdict  for  the  plaintiff  for  the  whole  damages  in 
the  declaration,  £500  ;  which  verdict 

JBloJJ-'et,  Sergt.,  now  moved  to  set  aside  for  excess ;  for, 
he  said,  the  defendant's  conduct  must  have  proceeded  from 
intoxication  or  insanity,  as  it  was  described  by  the  witnesses  ; 
the  jury  seemed  to  have  considered,  not  what  they  ought  to 
give  as  a  compensation  for  the  injury  sustained,  but  what 
they,  as  lords  of  manors  in  a  sporting  county,  where  the 
jealous}'  of  preserving  the  game  was  carried  to  an  excess, 
should  like  to  receive  in  similar  circumstances. 

Gibbs,  C.J.  I  wish  to  know,  in  a  case  where  a  man  dis- 
regards every  principle  which  actuates  the  conduct  of  gentle- 
men, what  is  to  restrain  him  except  large  damages?  To  be 
sure,  one  can  hardly  conceive  worse  conduct  than  this.  What 
would  be  said  to  a  person  in  a  low  situation  of  life,  who  should 
behave  himself  in  this  manner?  I  do  not  know  upon  what 
principle  we  can  grant  a  rule  in  this  case,  unless  we  were  to 
lay  it  down  that  the  jury  are  not  justified  in  giving  more  than 
the  absolute  pecuniary  damage  that  the  plaintiff  may  sustain. 
Suppose  a  gentleman  has  a  paved  walk  in  his  paddock,  be- 
fore his  window,  and  that  a  man  intrudes  and  walks  up  and 
down  before  the  window  of  his  house,  and  looks  in  while  the 
owner  is  at  dinner,  is  the  trespasser  to  be  permitted  to  sa}-, 
"Here  is  a  halfpenny  for  you,  which  is  the  full  extent  of  all 
the  mischief  I  have  done?  "  Would  that  be  a  compensation? 
I  cannot  say  that  it  would  be. 

Heath,  J.  I  remember  a  case  where  a  jury  gave  £")00 
damages  for  merely  knocking  a  man's  hat  off ;  and  the  court 
refused  a  new  trial.  There  was  not  one  country  gentleman 
in  a  hundred,  who  would  have  behaved  with  the  laudable  and 
dignified  coolness  which  this  plaintiff  did.  It  goes  to  prevent 
the  practice  of  duelling,  if  juries  are  permitted  to  punish 
insult  by  exemplary  damages. 

Rule  refused. 


360  CASES  ON  DAMAGES. 

CANNING  v.  WILLIAMSTOWN. 
Massachusetts,  1848.     1  Cush.  451. 

This  was  an  action  on  the  case  to  recover  damages  for  an 
injury  sustained  by  the  plaintiff,  in  consequence  of  a  defect 
in  a  bridge  in  the  town  of  Williamstown.1 

Metcalf,  J.  The  Rev.  Sts.  c.  25,  §  22,  provide,  that  if 
any  person  "shall  receive  any  injury  in  his  person,"  by 
reason  of  any  defect  or  want  of  repair  in  a  road,  he  may 
recover  of  the  party,  that  is  by  law  obliged  to  repair  the  road, 
the  amount  of  damage  sustained  by  such  injury. 

The  argument  for  the  defendants  assumes  that  the  plaintiff 
sustained  no  injury  in  his  person,  within  the  meaning  of  the 
statute,  but  merely  incurred  risk  and  peril,  which  caused 
fright  and  mental  suffering.  If  such  were  the  fact,  the 
verdict  would  be  contrary  to  law.  But  we  must  suppose  that 
the  jury,  under  the  instructions  given  to  them,  found  that  the 
plaintiff  received  an  injury  in  his  person  —  a  bodily  injury  — 
and  that  they  did  not  return  their  verdict  for  damages  sus- 
tained by  mere  mental  suffering  caused  by  the  risk  and  peril 
which  he  incurred.  And  though  that  bodily  injury  may  have 
been  very  small,  yet  if  it  was  a  ground  of  action,  within  the 
statute,  and  caused  mental  suffering  to  the  plaintiff,  that 
suffering  was  a  part  of  the  injury  for  which  he  was  entitled 
to  damages. 

We  are  of  opinion,  that  there  was  no  error  in  the  instruc- 
tions ;  and  we  cannot  presume  that  they  were  misunderstood 

or  disregarded  by  the  jury.2 

Exceptions  overruled. 

1  The  statement  of  facts  is  omitted. 

2  A  dictum  of  Lord  Wensleydale  in  Lynch  v.  Knight,  9  H.  L.  Cas. 
577,  598,  is  often  quoted  in  connection  with  the  principal  case.  Lynch  v. 
Knight  was  an  action  of  slander  for  charging  the  plaintiff  with  unchas- 
tity,  whereby  she  lost  the  consortium  of  her  husband.  The  House  of  Lords 
refused  to  allow  the  actiou,  on  the  ground  that  the  loss  of  consortium  did 


BALLOU   v.  FARNUM.  361 


BALLOU  v.  FARNUM. 

Massachusetts,  1865.     11  Allen,  73. 

Colt,  J.1  The  plaintiff  in  this  action  is  entitled  to  recover 
as  damages  compensation  for  all  such  personal  injury  to  him 
as  was  the  necessary  and  proximate  consequence  of  the  al- 
leged wrongful  act  of  the  defendants,  and  for  such  other  in- 
jury as  was  the  direct  and  natural,  though  not  the  necessary 
consequence  thereof,  and  which  is  specially  alleged  in  his 
declaration.  It  is  averred  that,  being  a  manufacturer,  before 
the  accident  able  to  earn  large  sums  of  money,  he  was  by  the 
injury  rendered  unable  to  labor  in  and  conduct  his  business. 
No  objection  was  taken  to  the  form  of  the  allegation,  and  it 
is  to  be  regarded  as  a  sufficient  statement  that  the  injury  had 
produced  a  diminution  of  capacity,  either  mental  or  physical 
or  both.  For  the  purpose  of  proving  the  extent  of  the  injury, 
the  plaintiff  was  permitted  to  introduce  evidence  to  show  his 
previous  occupation  as  a  manufacturer,  the  nature  of  the 
duties  he  was  accustomed  to  perform,  and  that  since  the  acci- 
dent he  was  able  to  do  very  little  that  required  mental  appli- 

not  follow  naturally  from  the  words  spoken.  Lord  Wensleydale  also  sug- 
gested a  doubt  whether  the  loss  of  consortium  of  a  husband  was  such  spe- 
cial damage  as  would  suffice  to  give  an  action  of  slander,  since  the  husband 
was  still  hidden  for  her  support  and  the  loss  was  therefore  not  a  pecuniary 
one.  In  the  course  of  this  argument  he  said:  "Mental  pain  or  anxiety 
the  law  cannot  value,  and  does  not  pretend  to  redress,  when  the  unlawful 
act  complained  of  causes  that  alone ;  though  where  a  material  damage 
occurs,  and  is  connected  with  it,  it  is  impossible  a  jury,  in  estimating  it, 
should  altogether  overlook  the  feelings  of  the  party  interested.  For  instance, 
where  a  daughter  is  seduced,  however  deeply  the  feelings  of  the  parent 
may  be  affected  by  the  wickec  act  of  the  seducer,  the  law  gives  no  re- 
dress, unless  the  daughter  is  also  a  servant,  the  loss  of  whose  service  is  a 
material  damage  which  a  jury  has  to  estimate ;  when  juries  estimate  that, 
they  usually  cannot  avoid  considering  the  injured  honor  and  wounded 
feelings  of  the  parent." 

1  Part  of  the  opinion  is  omitted* 


362  CASES  ON  DAMAGES. 

cation  or  physical  labor ;  and  it  is  now  insisted  that  this 
evidence  was  improperly  admitted.  It  is  said  that  if  the  jury 
were  permitted  to  take  into  consideration  as  an  element  of 
damage  the  loss  of  intellectual  power  and  capacity  of  the 
plaintiff  for  business,  the  inquiry  must  of  necessity  include  an 
estimate  of  the  future  profits  of  the  business  in  which  the 
plaintiff  was  or  might  thereafter  be  engaged  ;  that  such  an 
estimate  can  furnish  no  safe  basis  for  fixing  the  compensa- 
tion, and  must  at  best  be  conjectural  and  uncertain. 

In  general  the  profits  of  a  future  business  are  indeed  too 
remote  and  uncertain  to  be  relied  on  as  an  element  in  the 
estimate  of  damages.  It  does  not  follow  that  superior  educa- 
tion, experience  or  ability  in  the  management  of  business  in- 
sures pecuniary  success.  The  uncertainty  of  the  continuance 
of  health  and  life,  with  the  taste  and  disposition  for  such  pur- 
suits, and  especially  the  proverbial  uncertainty  of  trade,  pre- 
clude the  making  of  any  estimate  which  can  have  weight 
be3*ond  the  merest  conjecture.  If  this  evidence  had  been 
offered  by  the  plaintiff  with  a  view  of  increasing  the  damages 
on  account  of  his  wealth  or  peculiar  skill  as  a  manufacturer, 
or  the  large  profits  he  would  be  able  to  realize  in  his  future 
business,  and  it  had  been  admitted  for  that  purpose,  the  argu- 
ment of  the  defendant  would  be  entitled  to  further  consider- 
ation. But  it  was  offered  only  to  show  the  extent  of  the 
personal  injury  b}r  reason  of  the  loss  of  mental  vigor  and  en- 
durance thereby  occasioned.  The  diminution,  whatever  it 
was,  could  only  be  shown  b}*  evidence  of  strength  before  and 
weakness  afterwards  as  manifested  in  the  ordinary  pursuits  of 
the  plaintiff.  The  presiding  judge  admitted  it  only  for  this 
restricted  purpose,  and  carefully  instructed  the  jury  that  it 
was  admissible  only  in  order  to  enable  them  to  judge  of  the 
injury  to  his  capacit}-,  and  that  the  action  was  for  an  injury 
to  the  man,  and  not  for  interfering  with  his  business. 

In  all  actions  of  this  description,  and  particularly  in  those 
in  which  damages  for  mental  suffering  or  loss  of  mental  capa- 
city are  sought  to  be  recovered,  the  difficulty  of  furnishing  by 
evidence  the  means  of  measuring  the  extent  of  the  injury,  so 


BALLOU  v.  FARNUM.  363 

that  the  jur}'  may  be  able  to  award  with  any  certainty  a  pecu- 
niary equivalent  therefor,  is  at  once  apparent ;  and  in  this 
difficulty  the  defendants  find  argument  for  the  support  of  their 
objection.  But  the  answer  is,  that  the  law  does  not  refuse  to 
take  notice  of  such  injury  on  account  of  the  difficulty  of  ascer- 
taining its  degree.  In  a  variety  of  actions  founded  on  per- 
sonal torts,  and  in  many  where  no  positive  bodily  harm  has 
been  inflicted,  the  plaintiff  is  permitted  to  recover  for  injury 
to  the  feelings  and  affections,  for  mental  anxiety,  personal  in- 
sult, and  that  wounded  sensibility  which  follows  the  invasion 
of  a  large  class  of  personal  rights.  The  impossibility,  in  all 
such  cases,  of  precisely  appreciating  in  money  mental  suffer- 
ing of  this  description  is  certainly  as  great  as  is  suggested 
where  the  question  is  what  shall  be  allowed  for  a  permanent 
injury  to  mental  capacit}'.  The  compensation  for  personal 
injury  occasioned  by  the  negligence  or  misconduct  of  others, 
which  the  law  promises,  is  indemnity,  so  far  as  it  may  be 
afforded  in  money,  for  the  loss  and  damage  which  the  man 
has  suffered  as  a  man.  Some  of  its  elements  may  be  bodily 
pain,  mutilation,  loss  of  time  and  outlay  of  money  ;  but  of 
more  important  consideration  oftentimes  is  the  mental  suffer- 
ing and  loss  of  capacity  which  ensues.  Of  these  several 
items  of  injury,  if  compensation  is  to  be  confined  to  those 
capable  of  accurate  estimate,  it  will  include  but  a  small  part, 
and  must  exclude  all  those  injuries  commonly  regarded  as 
purely  physical ;  for  the  difficulty  in  ascertaining  a  pecuniary 
equivalent  for  the  last  named  is  precisely  the  same  and  quite 
as  great  as  any  that  have  been  suggested.  In  fact,  it  will  be 
found  impossible  to  fix  a  limit  to  injuries  of  a  physical  nature 
so  as  to  exclude  from  consideration  their  effect  on  the  mental 
organization  of  the  sufferer.  The  intimate  union  of  the 
mental  and  physical,  the  mutual  dependence  of  each  organi- 
zation—  if  indeed,  for  an}' practical  purpose  in  this  regard, 
they  can  be  considered  as  distinct  —  the  direct  and  mysteri- 
ous sympathy  that  exists  whenever  the  sound  and  healthy 
condition  of  either  is  disturbed,  render  useless  any  attempt  to 
separate  them  for  the    purpose    indicated.      It  is  obvious, 


364  CASES  ON  DAMAGES. 

upon  a  moment's  reflection,  that  the  powers  and  usefulness  of 
the  limbs  and  senses  in  ministering  to  the  necessities  and 
pleasures  of  the  individual  are  to  a  great  extent  to  be  meas- 
ured by  the  knowledge,  experience,  and  taste,  which  he  pos- 
sesses, and  which  are  purely  qualities  of  the  mind.  Take  the 
case  of  an  injury  to  the  right  arm  of  a  skilful  painter  or  musi- 
cian, for  example.  To  show  the  extent  of  his  injury,  the 
plaintiff  produces  evidence  of  the  use  he  was  able  to  make  of 
the  arm  before  and  after  the  accident.  From  such  evidence 
alone  could  the  jury  judge  of  the  plaintiff's  loss.  Such  proof 
is  constantly  resorted  to  without  objection  in  these  cases. 
And  still  the  chief  value  of  the  limb  to  its  possessor  consists 
in  its  skilful  use,  as  controlled  and  directed  by  the  cultivated 
taste  and  education  of  the  plaintiff ;  and  the  chief  loss  to  him 
is  the  loss  of  the  power  to  make  these  purely  intellectual  en- 
dowments available  for  his  pleasure  or  benefit.  Or  suppose 
the  injury  be  to  one  of  the  five  senses.  Can  any  rule  be 
adopted  which  shall  limit  the  damages  to  that  portion  of  the 
injury  suffered  which  may  be  called  only  bodily? 

There  is  a  class  of  injuries,  especially  those  which  affect  the 
brain  and  nervous  system,  to  which  this  case  seems  to  have 
belonged,  where,  b}'  common  observation,  the  most  satisfac- 
tory symptom  and  proof  of  the  physical  injury  is  to  be  found 
in  the  weakness  and  derangement  of  the  intellectual  faculties. 
Upon  the  whole,  then,  upon  principle  we  can  see  no  error  in 
the  admission  of  the  evidence,  with  the  accompanying  instruc- 
tions. In  the  main  it  must  always  be  left  to  the  discretion  of 
the  jury  to  give  such  reasonable  damages  in  these  cases  as  in 
their  opinion  will  afford  compensation  for  the  entire  .injur}' 
which  the  plaintiff  proves  he  has  sustained,  subject  to  that 
power  which  remains  in  the  court  to  set  aside  the  verdict  in 
those  cases  where  the  damages  awarded  are  so  excessive  as 
to  warrant  the  inference  that  some  passion  or  prejudice  or 
other  improper  considerations  influenced  them. 


MEAGHER  u.   DKISCOLL.  365 

MEAGHER  v.    DRTSCOLL. 

Massachusetts,  1868.     99  Mass.  281. 

Tort  in  the  nature  of  trespass  quare  clausum /regit  for  the 
removal  of  the  remains  of  the  plaintiffs  deceased  child  from 
Lot  No.  4  in  Holy  hood  Cemetery  in  Brookline.  The  judge 
ruled  that  if  it  appeared  that  the  defendant  had  acted  in  the 
removal  of  the  body  of  the  child,  either  with  a  wilful  disre- 
gard of  the  plaintiff's  rights,  or  under  a  mistake  arising  from 
gross  carelessness  and  want  of  ordinary  attention  or  dili- 
gence in  making  proper  inquiry,  and  with  the  opportunity, 
by  means  of  his  records  or  by  inquiry,  to  know  that  the 
plaintiff  had  paid  for  the  lot,  the  jury  in  assessing  damages 
would  have  a  right  to  consider  the  injury  to  the  plaintiff's 
feelings,  and  would  not  be  restricted  to  the  mere  pecuniary 
loss  or  damage  to  his  property. 

The  jury  returned  a  verdict  for  the  plaintiff,  assessing 
damages  in  the  sum  of  $837.50  ;  and  the  defendant  alleged 
exceptions.1 

Foster,  J.  The  measure  of  damages  was  correctly  stated. 
The  gist  of  the  action  is  the  breaking  and  entering  of  the 
plaintiffs  close.  But  the  circumstances  which  accompany 
and  give  character  to  a  trespass  may  always  be  shown  either 
in  aggravation  or  mitigation.  Bracegirdle  v.  Orford,  2  M.  & 
S.  77.  Merest  v.  Harvey,  5  Taunt.  442.  Brewer  v.  Dew,  1 1 
M.  &  W.  625.  He  who  is  guilt}-  of  a  wilful  trespass,  or  one 
characterized  by  gross  carelessness  and  want  of  ordinary 
attention  to  the  rights  of  another,  is  bound  to  make  full  com- 
pensation. Under  such  circumstances,  the  natural  injury  to 
the  feelings  of  the  plaintiff  may  be  taken  into  consideration 
in  trespasses  to  real  estate  as  well  as  in  other  actions  of  tort. 
Acts  of  gross  carelessness,  as  well  as  those  of  wilful  mischief, 
often  inflict  a  serious  wound  upon  the  feelings,  when  the 

1  Part  of  the  statement  of  facta  and  of  the  opinion  are  omitted. 


366  CASES  ON  DAMAGES. 

injury  done  to  propert}'  is  comparatively  trifling.  We  know 
of  no  rule  of  law  which  requires  the  mental  suffering  of  the 
plaintiff,  or  the  misconduct  of  the  defendant,  to  be  disre- 
garded. The  damages  in  such  cases  are  enhanced,  not 
because  vindictive  or  exemplary  damages  are  allowable,  but 
because  the  actual  injury  is  made  greater  by  its  wantonness. 

Exceptions  overruled. 


VOGEL  v.  McAULIFFE. 

Rhode  Island,  1895.     31  Atl.  Rep.  1. 

Action  on  the  case  for  damages  caused  by  defendant 
wrongfully  neglecting  to  replace  a  furnace  belonging  to 
premises  leased  by  plaintiff,  which  defendant  had  taken 
down.1 

Tillinghast,  J.  We  do  not  think  the  court  erred  in  ad- 
mitting the  testimon}'  offered  by  the  plaintiff  as  to  the  con- 
dition of  his  infant  child  at  the  time  of  and  immediately 
following  the  destruction  of  his  furnace.  The  child  was  ill 
with  bronchitis,  and  on  account  of  the  destruction  of  the 
furnace  had  to  be  taken  into  the  kitchen  and  cared  for  there, 
which,  according  to  the  testimony,  was  not  so  convenient  or 
suitable  a  place  as  it  had  previously  occupied.  And  although 
it  does  not  appear  that  any  injury  was  sustained  by  the  child 
on  account  of  the  change,  }*et  the  plaintiff'  was  annoyed  and 
subjected  to  more  or  less  mental  suffering  and  anxiety  by 
reason  thereof. 

1  Only  so  much  of  the  case  as  discusses  damages  for  mental  suffering 
is  given. 


SWIFT  v.   DICKER  MAN.  367 

SWIFT  v.  DICKERMAN. 

Connecticut,  1863.     31  Conn.  285. 

Sanford,  J.1  This  is  an  action  for  words  spoken,  which 
impute  to  the  plaintiff,  a  practising  physician  and  surgeon,  the 
want  of  professional  knowledge  and  skill.  The  charge  that 
"  if  the  jury  should  find  that  the  slanders  had  injured  the 
plaintiff's  character  and  position  they  might  take  into  con- 
sideration his  anxiety  and  suffering  on  that  account,"  was 
right. 

It  is  true  that  the  words  spoken  relate  only  to  the  plaintiff's 
professional  character  and  are  aimed  especially  at  his  pecu- 
niary interests  dependent  upon  his  professional  calling  and 
employment.  But  the  natural  if  not  the  necessary  effect  of 
professional  degradation  and  disgrace  is  personal  anxiety  and 
suffering  on  account  of  it.  And  that  anxiety  and  suffering 
were  proper  subjects  for  compensation  to  the  plaintiff,  and 
ought  to  be  atoned  for  by  the  defendant. 

There  is,  and  there  ought  to  be,  no  other  rule  upon  the 
subject,  than  that  a  tort-feasor  shall  be  held  responsible  in 
damages  for  the  full  amount  of  all  the  immediate  injury  occa- 
sioned by  his  wrongful  act.  This  rule  was  adopted  by  the 
Superior  Court  and  sanctioned  by  this  court  in  the  recent 
case  of  Lawrence  v.  Housatonic  R.  R.  Co.,  29  Conn.  390,  in 
that  of  Seger  v.  Barkhampsted,  22  Conn.  290,  and  in  many 
other  cases. 

It  is  difficult  to  conceive  how  a  member  of  either  of  the 
learned  professions  can  be  injured  in  his  professional  charac- 
ter without  being  at  the  same  time  subjected  to  anxiety  and 
mental  suffering, —  suffering  on  account  of  apprehended  pro- 
fessional dishonor,  to  be  followed  as  it  naturally  and  almost 
necessarily  is,  and  always  ought  to  be,  by  social  degradation 
and  disgrace,  and  the  ultimate  loss  of  professional  employ- 
1  Part  of  the  opinion  is  omitted. 


368  CASES   ON   DAMAGES. 

ment  with  its  honors  and  emoluments.  Bodny  pain  com- 
prises but  a  very  small  part  of  the  suffering  endured  by 
rational  beings,  and  the  injuries  -which  the  calumniator  inflicts 
act,  often  entirely  and  always  immediately,  upon  the  mental 
sensibilities  of  his  victim.  Mental  suffering,  then,  constitutes 
an  important  element  in  the  calculation  of  compensation  to  be 

made  for  such  an  injury. 

A  new  trial  should  be  denied. 


WADSWORTH  v.  WESTERN  UNION  TEL.  CO. 

Tennessee,  1888.     86  Tenn.  695. 

Caldwell,  J.1  This  suit  was  brought  in  the  Circuit  Court 
at  Memphis,  by  Mrs.  Jennie  H.  Wadsworth  and  her  husband, 
T.  J.  Wadsworth,  against  the  Western  Union  Telegraph 
Company,  for  failing  to  promptly  deliver  to  her  the  following 
telegraphic  messages:  "Memphis,  October  2,  1887.  To 
Mrs.  T.  J.  Wadsworth,  Byhalia,  Miss. :  Your  brother, 
Billie  Howell,  is  in  a  dying  condition  at  105  Jefferson  St. 
R.  C.  Waldejt."  And:  "Memphis,  October  3,  1887.  To 
Mrs.  T.  J.  Wadsworth,  Byhalia,  Miss. :  Mr.  Howell  died 
this  morning.  Advise  us  what  to  do.  Will  look  for  some 
one  on  morning  train.  R.  C.  Walden."  It  is  averred  in  the 
declaration  that  Byhalia  is  about  28  miles  from  Memphis,  and 
that  the  two  places  are  connected  by  direct  line  of  telegraphic 
wire  and  railroad  ;  that  Billie  Howell,  a  brother  of  Mrs.  Wads- 
worth, one  of  the  plaintiffs,  was  "  seized  with  a  mortal  malady," 
in  the  city  of  Memphis,  on  the  2d  day  of  October,  1887,  and 
that,  at  about  the  hour  of  7  o'clock  p.m.  of  that  day,  R.  C. 
Walden,  a  "  friend  of  the  family,"  presented  to  the  defend- 
ant the  former  of  the  messages  just  set  out,  written  upon  one 
of  its  day  or  full-rate  blanks,  and  that  it  was  accepted  by 
the  defendant  for  immediate  transmission  and  delivery  to 
her ;  that  through  the  gross,  wanton,  and  reckless  negligence 
of  the  defendant,  and  in  palpable  violation  of  its  duty,  the 
1  Part  of  the  opinion  is  omitted. 


WADS  WORTH  v.  WESTERN  UNION  TEL.  CO.       369 

message  was  by  the  defendant  detained,  and  not  delivered 
until  about  11.30  o'clock  a.  m.  of  the  next  day,  and  several 
hours  after  the  death  of  Howell ;  that  he  died  about  6.30 
o'clock  a.  m.  on  the  3d  of  October,  1887,  and  a  few  moments 
thereafter  the  second  of  said  telegrams  was  presented  and 
accepted  for  immediate  transmission  and  delivery,  as  was  the 
other  one,  and  that,  through  the  same  gross,  wanton,  and 
reckless  negligence  of  the  defendant,  this  second  message 
was  detained,  and  not  delivered  by  the  defendant,  until  about 
the  same  time  the  other  one  was  delivered ;  that,  by  reason 
of  this  negligence  and  breach  of  duty  on  the  part  of  the  de- 
fendant, Mrs.  Wadsworth  was  prevented  from  attending  her 
dying  brother  and  administering  to  him  in  his  last  hours,  and 
also  from  making  desired  preparations  for  his  interment ;  that 
the  messages  were  sent  at  her  expense  ;  and  that  she  paid  full 
toll  therefor,  —  "to  her  damage  ten  thousand  dollars." 
Demurrer  was  sustained,  and  the  suit  dismissed.  Plaintiffs 
have  appealed  in  error. 

The  first  assignment  of  demurrer  is  that  the  declaration 
shows  no  cause  of  action,  in  that  it  avers  no  pecuniary  dam- 
age or  personal  injury  ;  that  mental  suffering,  unaccompanied 
by  pecuniary  injury,  will  not  sustain  an  action.  Clearly,  the 
declaration  discloses  a  case  for  some  damage  ;  and  to  this 
extent,  it  must  be  conceded,  the  action  in  sustaining  the  de- 
murrer was  erroneous.  The  messages  in  question  were 
couched  in  decent  language,  and  were  lawful  in  their  purpose. 
Such  being  true,  Walden  had  a  legal  right  to  send  them,  and 
Mrs.  Wadsworth  a  legal  right  to  receive  them  ;  and  it  was 
the  plain  duty  of  the  defendant  to  deliver  them  promptly. 
Its  dereliction  of  duty,  and  violation  of  her  legal  right,  as 
averred  in  the  declaration,  and  confessed  in  the  demurrer, 
unquestionably  gave  her  a  right  of  action.  "Every  infrac- 
tion of  a  legal  right,  in  contemplation  of  law,  causes  injury. 
This  is  practically  and  legally  an  incontrovertible  proposition. 
If  the  infraction  is  established,  the  conclusion  of  damages 
inevitably  follows."     1  Suth.  Dam.  2. 

But  the  question  most  debated  at  the  bar  by  learned  coun- 

24 


370  CASES   ON  DAMAGES. 

sel,  and  the  one  of  most  importance  and  interest  in  this  case, 
is  whether  or  not  injury  to  the  feelings,  anguish,  and  pain  of 
mind,  occasioned  by  the  defendant's  breach  of  duty  to  Mrs. 
Wadsworth,  can  be  regarded  as  an  element  of  damage,  under 
the  law.  In  actions  for  personal  injury,  the  general  rule, 
which  is  too  familiar  to  admit  of  citations  of  authority  to  sus- 
tain it,  is  that  both  bodily  pain,  and  mental  suffering  con- 
nected therewith,  are  to  be  considered  b}r  the  jury  in  esti- 
mating the  amount  of  damage  sustained,  and  the  sum  to  be 
recovered  by  the  plaintiff.  Upon  the  latter  element,  it  is  very 
truthfully  and  appropriately  remarked  by  a  learned  author 
that  "  the  mind  is  no  less  a  part  of  the  person  than  the  body, 
and  the  sufferings  of  the  former  are  sometimes  more  acute 
and  lasting  than  those  of  the  latter.  Indeed  the  sufferings 
of  each  frequently,  if  not  usually,  act  reciprocally  on  the 
other."  3  Suth.  Dam.  260.  After  laying  down  the  rule  as 
we  have  stated  it  to  be,  and  citing  some  of  the  very  many 
decisions  adopting  it,  Mr.  Wood  says :  "  But  we  do  not  ap- 
prehend that  the  rule  has  any  such  force  as  to  enable  a  per- 
son to  maintain  an  action  where  the  only  injury  is  mental 
suffering,  as  might  be  thought  from  a  reading  of  the  loose 
dicta  and  statements  of  the  court  in  some  of  the  cases.  So 
far  as  I  have  been  able  to  ascertain  the  force  of  the  rule,  the 
mental  suffering  referred  to  is  that  which  grows  out  of  the 
sense  of  peril  or  the  mental  agony  at  the  time  of  the  happen- 
ing of  the  accident,  and  that  which  is  incident  to  and  blended 
with  the  bodily  pain  incident  to  the  injury,  and  the  apprehen- 
sion and  anxiety  thereby  induced."  Wood's  Mayne,  Dam. 
74,  note.  On  same  subject  Mr.  Coole}'  says:  "But  in  this 
country,  as  well  as  in  England,  the  ground  of  recovery  must 
be  something  besides  an  injury  to  the  feelings  and  affections, 
or  the  loss  of  the  pleasure  and  comfort  of  the  society  of  the 
person  killed.  There  must  be  a  loss  to  the  claimant  that 
is  capable  of  being  measured  by  a  pecuniary  standard." 
Cooley,  Torts,  271.  These  are  the  strongest  statements  of 
the  rule  contended  for  by  the  defendant  which  we  have  seen, 
and  to  them  we  give  our  full  approval  when  applied  to  the 


WADSWORTH    v.   WESTERN    UNION  TEL.    CO.        371 

class  cf  cases  with  respect  to  which  they  are  made.  But 
they  are  applicable  peculiarly,  not  to  say  exclusively,  to 
actions  for  injury  to  the  person  where  physical  injury  is  the 
sole  ground  of  the  action,  and  without  which  the  action  will 
not  lie  at  all.  This,  however,  is  an  action,  on  the  facts  of 
the  case,  which  is  permissible  under  our  Code,  and  may  in- 
clude all  matters  embraced  in  an  action  ex  delicto,  and  also 
those  proper  to  be  considered  in  an  action  ex  contractu. 
The  plaintiff,  having  a  clear  right  of  action  for  some  damage, 
as  we  have  already  seen,  may  maintain  her  action,  and  re- 
cover all  the  damage  she  may  show  herself  to  have  sustained 
by  reason  of  the  wrongful  act  of  the  defendant ;  and,  in 
ascertaining  the  amount  thereof,  all  proven  elements  of  dam- 
age, admissible  in  either  form  of  action,  are  for  the  consider- 
ation of  the  jury.  In  an  action  for  tort  the  injured  party  may 
recover  such  damages  as  result  proximately  and  naturally 
from  the  wrongful  act  of  the  defendant,  and  also  exemplary 
damages  where  the  act  was  done  with  malice,  or  under  cir- 
cumstances of  aggravation  ;  and,  in  an  action,  for  breach  of 
contract,  the  measure  of  the  damages  recoverable  is,  gener- 
ally, the  loss  which  the  contracting  parties,  with  all  the  facts 
before  them,  would  have  contemplated  as  flowing  directly 
from  its  breach.  2  Thomp.  Neg.  849  ;  Gray,  Tel.  146.  The 
latter  author,  on  the  next  page,  says  :  "  Neither  in  an  action 
of  tort  nor  in  one  of  contract  can  a  party  recover  damages 
for  mental  anguish  alone.  He  can  recover  such  damages,  in 
consonance  with  the  foregoing  rules,  at  least,  only  where  he 
is  entitled  to  recover  some  damages  on  another  ground." 
There  is  a  large  class  of  actions  for  tort  in  which  substantial 
recoveries  are  authorized  and  sustained  for  injury  to  the  feel- 
ings of  the  person  suing  where  the  other  damage  is  nominal 
merely.  As  instances  of  such  actions,  we  mention  the  case 
of  a  husband  suing  for  an  injury  to  his  wife,  or  for  seducing 
or  enticing  her  away  from  him,  and  that  of  a  parent  suing 
for  the  seduction  of  the  daughter.  In  all  these  cases,  the 
main  element  of  damage,  the  real  injury  sustained,  is  the 
wound  to  the  feelings ;  the  loss  of  service  upon  which  the 


372  CASES  ON   DAMAGES. 

actions  are  technically  based  being  but  a  legal  fiction,  and 
more  imaginary  than  real.  Love  v.  Mosoner,  6  Baxt.  27  ; 
Parker  v.  Meek,  3  Sneed,  30  ;  Maguinay  v.  Saudek,  5  Sneed, 
147  ;  Cooley,  Torts,  224,  226,  231 ;  3  Sutb.  Dam.  744.  With 
respect  to  actions  for  breach  of  contract,  Mr.  Sutherland  asks 
the  question,  "May  damages  for  breach  of  contract  include 
other  than  pecuniary  elements?"  and  then  he  proceeds  to 
say  :  "  In  actions  upon  contract,  the  losses  sustained  do  not, 
by  reason  of  the  nature  of  the  transactions  which  they  involve, 
embrace,  ordinarily,  any  other  than  pecuniary  elements. 
There  is,  however,  no  reason  why  other  natural  and  direct 
injuries  might  not  justify  and  require  compensation.  Con- 
tracts are  not  often  made  for  a  purpose,  the  defeating  or  im- 
pairing of  which  can,  in  a  legal  sense,  inflict  a  direct  and 
natural  injury  to  the  feelings  of  the  injured  party.  A  breach 
of  promise  of  marriage  is  an  instance  of  such  a  contract,  and 
such  considerations  enter  into  the  estimate  of  the  damages. 
The  action  for  such  a  cause  is  often  referred  to  as  an  excep. 
tional  action.  In  a  certain  sense  it  is  so  ;  but  in  the  partic- 
ular under  consideration  it  is  only  peculiar.  It  is  an  action 
upon  contract,  and  the  damages  allowed  are  such  as,  consid- 
ering the  nature  and  benefits  of  the  thing  promised,  will  be 
adequate  compensation."  1  Suth.  Dam.  156,  157.  To  fur- 
ther illustrate  and  answer  his  question,  the  same  author  says  : 
"  Where  a  contract  is  made  to  secure  exemption  from  a  par- 
ticular inconvenience  or  anno}-ance,  or  to  confer  a  particular 
enjo3rraent,  the  breach,  so  far  as  it  disappoints  in  respect  to 
that  purpose,  may  give  a  right  to  damages  appropriate  to  the 
objects  of  the  contract."     Id.  157,  158. 

These  are  but  illustrations  and  applications  of  the  general 
rule  which  we  have  already  stated  for  the  estimation  of  dam- 
ages in  actions  for  breach  of  contract.  They  serve  the  pur- 
pose of  showing  that,  in  the  ordinary  contract,  onby  pecuni- 
ary benefits  are  contemplated  by  the  contracting  parties  ,•  and 
that,  therefore,  the  damages  resulting  from  the  breach  of  such 
a  contract  must  be  measured  by  pecuniar}'  standards  ;  and 
that,  where  other  than  pecuniary  benefits  are  contracted  for, 


WADSWORTH   v.   WESTERN   UNION  TEL.   CO.        373 

other  than  pecuniary  standards  will  be  applied  in  the  ascer- 
tainment of  the  damages  flowing  from  the  breach.  The  case 
before  us  (so  far  as  it  is  an  action  for  breach  of  contract)  is 
subject  to  the  same  general  rule ;  and  the  defendant  is 
answerable  in  damages  for  the  breach  according  to  the  nature 
of  the  contract,  and  the  character  and  extent  of  the  injury 
suffered  by  reason  of  its  non-performance.  The  messages 
were  sent  for  a  particular  purpose,  which  was  disclosed  upon 
their  face,  and  of  which  the  defendant  had  full  notice.  That 
purpose  was  not  of  a  pecuniary  nature.  There  was  no  offer 
or  instruction  to  buy  or  sell  anything;  no  proposition  or 
promise  with  respect  to  any  business  transaction.  The  mes- 
sages were  of  far  greater  importance  to  the  receiver  than  any 
of  these.  Her  brother  was  lying  at  the  point  of  death,  in 
easy  reach  of  her.  It  was  information  of  this  fact  that  the 
defendant  first  undertook  to  convey  to  her  for  a  stipulated 
sum,  and  which,  if  conveyed  promptly,  would  have  enabled 
her  to  be  with  him  in  his  last  moments,  and  would  have 
saved  her  the  injury  of  which  she  complains.  Then  her 
brother  died  away  from  her;  his  bod}r  needed  her  attention, 
and  would  have  received  it,  as  owned,  if  the  defendant  had 
done  its  duty.  It  was  intelligence  of  the  death  which  the 
defendant  agreed,  in  the  second  place,  to  communicate  to  her. 
The  messages  were  proper  in  language,  and  lawful  in  purpose. 
She  was  entitled  to  the  information  they  contained,  and  to 
whatever  benefits  that  information  would  have  conferred  upon 
her,  even  though  such  benefits  be  mainly  or  altogether  to  the 
feelings  and  affections.  The  defendant  contracted  that  she 
should  have  those  benefits,  and  that  she  should  be  spared 
whatever  pain  and  anguish  such  information,  promptly  con- 
veyed, would  prevent.  By  all  the  authorities,  including  our 
Code,  it  was  the  duty  of  the  defendant  to  transmit  and  de- 
liver these  messages  "correctly,  and  without  unreasonable 
delay  ; "  and,  in  failing  to  do  so,  it  became  responsible  for 
all  loss  or  injury  occasioned  thereby.  Code  Mill.  &  V.  §§ 
1541,  1542;  Marr  v.  Telegraph  Co.,  1  Pickle,  529,  3  S.  W. 
Rep.  496  ;  Gray,  Tel.  §§  81,  82,  et  seq. ;  Cooley,  Torts,  646, 


374  CASES  ON   DAMAGES. 

647  ;  Whart.  Neg.  §  767  ;  3  Suth.  Dam.  298-300 ;  Shear.  & 
R.  Neg.  §  605.  This  rule  of  damages  is  enforced  by  the 
Supreme  Courts  of  Georgia,  Virginia,  and  other  States,  even 
where  the  message  is  in  cipher.  Telegraph  Co.  v.  Fatman, 
73  Ga.  285,  54  Amer.  Rep.  877 ;  Telegraph  Co.  v.  Reynolds, 
77  Va.  173,  46  Amer.  Rep.  715,  and  reporter's  note  at  end 
of  case.  It  is  true  that  most  of  the  adjudged  cases  in  which 
telegraph  companies  have  been  required  to  respond  in  dam- 
ages for  their  negligence  have  involved  questions  of  pecuni- 
ary loss ;  but  we  cannot  agree  that  for  that  reason  the 
liability  should  attach  and  be  enforced  in  such  cases  only. 
Telegraphy  is  of  comparatively  recent  origin,  and  the  law 
concerning  the  duties  and  liabilities  of  telegraph  companies 
has  hardly  passed  its  infanc}',  and  cannot  be  expected,  at  so 
early  a  day  in  its  history,  to  be  settled,  even  in  its  important 
parts,  liy  a  long  line  of  concurring  decisions. 

In  addition  to  this,  it  is  but  reasonable  to  presume  that 
such  a  flagrant  breach  of  plain  obligation,  with  respect  to 
matters  so  near  the  heart  and  so  accustomed  to  the  respect 
of  all  mankind,  as  is  here  averred,  has  but  seldom  occurred, 
and  therefore  has  but  seldom  been  brought  to  the  attention 
of  the  courts  of  the  country.  To  hold  that  the  defendant  is 
not  liable,  in  this  case,  for  the  wrong  and  injury  done  to  the 
feelings  and  affections  of  Mrs.  Wadsworth  by  its  default, 
would  be  to  disregard  the  purpose  of  the  telegrams  altogether, 
and  to  violate  that  rule  of  law  which  authorizes  a  recovery  of 
damages  appropriate  to  the  objects  of  the  contracts  broken  ; 
and,  furthermore,  such  a  holding  would  justify  the  conclusion 
that  the  defendant  might  with  impunity  have  refused  to  re- 
ceive and  transmit  such  messages  at  all,  and  that  it  has  the 
right  in  the  future  to  do  as  it  has  done  in  this  case,  or,  at 
least,  that  it  cannot  be  required  to  respond  in  damages  for 
doing  so.  To  such  a  result  we  think  no  court  should  submit. 
The  telegraph  company  is  the  servant,  rather  than  the  master, 
of  its  patrons.  It  is  their  prerogative  to  determine  what 
messages  they  will  present;  and,  so  they  are  lawful,  it  is 
bound  by  law,  upon  payment  of  its  toll,  to  transmit  and  de' 


WESTERN  UNION  TEL.   CO.  v.   ROGERS.  375 

liver  them  correctly  and  promptly.  It  has  no  right  to  say 
what  is  important,  and  what  is  not ;  what  will  be  profitable 
to  the  receiver,  and  what  will  not;  what  has  a  pecuniary 
value,  and  what  has  not ;  but  its  single  and  plain  duty  is  to 
make  the  transmission  and  delivery  with  promptitude  and 
accuracy.  When  that  is  done,  its  responsibility  is  ended. 
When  it  is  omitted,  through  negligence,  the  compan}-  must 
answer  for  all  injury  resulting,  whether  to  the  feelings  or  to  the 
purse,  one  or  both,  subject  alone  to  the  proviso  that  the  injury 
be  the  natural  and  direct  consequence  of  the  negligent  act. 
Lurton  and  Folkes,  JJ.,  dissenting. 


WESTERN  UNION   TEL.   CO.   v.   ROGERS. 

Mississippi,  1891.     68  Miss.  748. 

Cooper,  J.  A  telegram  was  sent  from  Chattanooga, 
Tenn.,  to  the  plaintiff,  who  resides  in  Meridian,  informing 
him  of  the  death  of  his  brother,  and  the  time  and  place  at 
which  he  would  be  buried.  If  this  despatch  had  been 
seasonably  delivered,  the  plaintiff  could  and  would  have 
attended  the  burial.  By  negligence  of  the  agent  of  the 
defendant  company  at  Meridian,  it  was  not  delivered  until 
after  the  last  train  had  left  Meridian  for  Chattanooga,  by 
which  the  plaintiff  could  have  travelled  to  attend  the  funeral 
services.  This  suit  was  brought  to  recover  the  damages 
sustained  by  the  plaintiff  by  reason  of  the  non-delivery  of 
the  message.  The  facts  are  undisputed.  They  are  that  the 
message  was  sent,  and  its  transmission  paid  for  by  the 
sender;  that  it  was  by  the  negligence  of  the  agent  not 
delivered ;  that  the  plaintiff  sustained  no  pecuniary  loss, 
his  damages  being  merely  nominal,  unless  he  is  entitled  to 
recovery  for  the  disappointment  of  not  being  informed  of  the 
death  of  his  brother  in  time  to  attend  his  burial.  The  court 
below  instructed  the  jury  that  the  plaintiff  was  entitled  to 
recover  as  compensation  damages  for  the  mental  suffering 


376  CASES   ON  DAMAGES. 

sustained  by  hiua  by  reason  of  being  deprived  of  the  privilege 
of  attending  the  funeral  of  his  brother,  it  being  conceded  that 
no  such  negligence  was  shown  as  would  warrant  the  infliction 
of  punitive  damages.  The  jury  returned  a  verdict  for  $800, 
and  from  a  judgment  thereon  the  defendant  appeals.  It 
thus  appears  that  the  single  question  presented  is  whether, 
under  the  circumstances  named,  damages  for  mental  suffering 
may  be  recovered.  It  is  immaterial,  in  the  determination  of 
the  question  involved,  whether  the  action  be  considered  as 
one  for  the  breach  of  the  contract  to  transmit  and  deliver 
the  message,  or  as  an  action  on  the  case  for  the  tort  in  failing 
to  perform  the  duty  devolved  on  the  telegraph  company  under 
the  contract.  The  substance  and  nature  of  the  default  and 
the  consequent  injury  are  the  same  in  either  view,  and,  in  the 
absence  of  circumstances  warranting  the  imposition  of 
punitory  damages,  the  measure  of  damages  must  be  the 
same,  whatever  be  the  form  of  the  action.  We  have  given 
to  the  investigation  of  the  question  that  consideration  which 
its  importance  demands,  and,  though  the  right  of  the  plaintiff 
to  recover  the  damages  awarded  in  this  case  finds  support  in 
the  decisions  of  several  of  the  States,  we  are  unwilling  to 
depart  from  the  long-established  and  almost  universal  rule  of 
law  that  no  action  lies  for  the  recovery  of  damages  for  mere 
mental  suffering,  disconnected  from  physical  injury,  and  not 
the  result  of  the  wilful  wrong  of  the  defendant.  That  such 
damages  are  recoverable  in  actions  for  breach  of  contract 
of  marriage  is  well  settled ;  but  it  is  equally  true  that  until 
recent  years  this  action  stood  as  the  marked  and  single 
exception  in  which  such  damages  were  recoverable  in  actions 
for  breach  of  contract.  This  action,  though  in  form  one  for 
the  breach  of  contract,  partakes  in  several  features  the  char- 
acteristics of  an  action  for  the  wilful  tort,  and,  though  the 
damages  recoverable  by  the  plaintiff  for  mental  suffering  are 
spoken  of  as  compensatory,  the  fervent  language  of  the  courts 
indicates  how  shadowy  is  the  line  that  separates  them  from 
those  strictly  punitoiy.  Harrison  v.  Swift,  13  Allen,  142; 
Kurtz  v.  Frank,  76  Ind.  595  ;  Thorn  v.  Knapp,  42  N.  Y.  475  f 


WESTERN  UNION  TEL.   CO.   v.   ROGERS.  377 

Johnson  v.  Jenkins,  24  N.  Y.  252  ;  Coryell  v.  Colbaugh,  1 
N.  J.  Law,  77.  So  much,  indeed,  does  the  motive  of  the 
defendant  enter  into  the  question  of  damages  that  in  Johnson 
v.  Jenkins  he  was  permitted  to  give  in  evidence,  in  mitiga- 
tion of  damages,  the  fact  that  he  refused  to  consummate  the 
marriage  because  of  the  settled  opposition  of  his  mother, 
who  was  in  infirm  health.  .  .   . 

It  is  upon  the  suggestions  of  the  text-writers,  supported 
by  authorities  which  have  been  given  a  strained  construction, 
and  upon  a  misapplication  of  the  rule  that  damages  for  a 
breach  of  contract  are  commensurate  with  the  injury  contem- 
plated by  the  parties,  that  some  courts  in  recent  years  have 
decided  that  mental  pain  and  anguish,  disconnected  from 
physical  injury,  furnish  a  substantive  cause  of  action  for 
which  recover}'  may  be   had. 

The  principle  of  limitation  applied  by  the  courts  in  cases 
involving  pecuniary  loss,  for  the  necessary  protection  of 
defendants  against  ruin  by  the  infliction  of  speculative  and 
remote  damages,  has  been  perverted,  and  accepted  as  the 
standard  of  measurement  of  damages  in  a  class  of  cases  in 
which  the  sole  injury  sustained  is  confessedly  incapable  of 
compensation,  and  in  which  any  damages  awarded  must, 
from  the  nature  of  things,  be  purely  speculative  and  uncer- 
tain. In  1881,  in  the  case  of  So  Relle  v.  Telegraph  Co.,  55 
Tex.  308,  the  Supreme  Court  of  Texas,  relying  upon  the 
authority  of  two  previous  decisions  in  that  State  (Hays  v. 
Railroad  Co.,  46  Tex.  279,  and  Railroad  Co.  v.  Randall,  50 
Tex.  261),  in  one  of  which  an  assault  and  battery  had  been 
committed  on  the  passenger,  and  in  the  other  serious  and 
permanent  physical  injury  had  been  suffered,  for  which 
damages  for  mental  pain  and  anguish  had  been  allowed,  and 
upon  a  suggestion  in  the  text  of  Shearman  &  Redfield  on 
Negligence,  unsupported  by  any  authority,  decided  that  the 
sendee  of  a  message  might  recover  from  the  company,  as 
compensatory  damages,  for  mental  suffering  caused  by  its 
failure  to  promptly  deliver  a  message  which  announced  to 
him  the  death  of  his  mother,  by  reason  of  which  default  ho 


378  CASES  ON  DAMAGES. 

was  not  informed  of  her  death  and  failed  to  attend  her 
funeral.  This  decision  has  been  since  overruled,  upon  a 
subordinate  point,  but  the  general  proposition  thereby 
established,  that  mental  suffering,  disconnected  from  physi- 
cal injury,  ma}'  be  compensated  for  in  actions  for  breach  of 
contract,  has  been  since  repeatedly  reaffirmed.  Railroad  Co. 
v.  Levy,  59  Tex.  542,  563  ;  Stuart  v.  Telegraph  Co.,  66  Tex. 
580;  McAllen  v.  Telegraph  Co.,  70  Tex.  243;  Telegraph 
Co.  v.  Cooper,  71  Tex.  507;  Loper  v.  Telegraph  Co.,  70 
Tex.  689  ;  Telegraph  Co.  v.  Simpson,  73  Tex.  422  ;  Tele- 
graph Co.  v.  Adams,  75  Tex.  537  ;  Telegraph  Co.  v.  Feegles, 
75  Tex.  537  ;  Telegraph  Co.  v.  Moore,  76  Tex.  67  ;  Telegraph 
Co.  v.  Broesche,  72  Tex.  651.  The  courts  of  Alabama,  Ten- 
nessee, Indiana,  and  Kentucky  have  followed  the  Supreme 
Court  of  Texas,  relying  upon  the  decisions  above  noted  as 
authority.  Telegraph  Co.  v.  Henderson,  89  Ala.  510 ;  Wads- 
worth  v.  Telegraph  Co.,  86  Tenn.  695  ;  Reese  v.  Telegraph 
Co.,  123  Ind.  295  ;  Chapman  v.  Telegraph  Co.,  90  Ky.  265. 
These  cases,  so  far  as  we  have  been  able  to  discover,  rest 
upon  the  authority  of  each  other,  finding  no  support  in  the 
decisions  of  the  other  States,  nor  those  of  England. 

In  actions  for  injuries  sustained  by  the  negligence  of  the 
defendant,  where  serious  bodily  harm  has  resulted,  the  gener- 
ally accepted  rule  is  that  the  jury  may,  and,  since  it  is  im- 
possible to  draw  the  line  between  physical  pain  and  mental 
suffering  in  such  instances,  must,  give  damages  for  both. 
Expressions  used  by  the  courts  as  argument  or  illustration  in 
those  cases,  in  which  damages  for  mental  suffering  are  re- 
coverable because  such  suffering  is  declared  to  be  inseparable 
from  physical  pain  and  injury,  have  been  seized  upon  as 
sustaining  a  right  of  action  for  mental  suffering  alone,  or  for 
such  suffering  coupled  with  the  right  in  the  plaintiff  to  merely 
nominal  damages.  Damages  for  mental  suffering  have  been 
very  generally  allowed  in  three  classes  of  cases :  (1)  Where, 
by  the  merely  negligent  act  of  the  defendant,  physical  injury 
has  been  sustained  ;  and  in  this  class  of  cases  they  are  com- 
pensatory, and  the  reason  given  for  their  allowance  by  all  the 


WESTERN  UNION  TEL.   CO.  v.  ROGERS.  379 

courts  is  that  the  one  cannot  be  separated  from  the  other. 
(2)  In  actions  for  breach  of  contract  of  marriage.  (3)  In 
cases  of  wilful  wrong,  especially  those  affecting  the  liberty, 
character,  reputation,  personal  security,  or  domestic  relations 
of  the  injured  party.  The  decisions  in  Texas,  Tennessee, 
Kentucky,  Indiana,  and  Alabama  rest  upon  arguments  and 
illustrations  drawn  from  cases  of  one  or  the  other  of  these 
classes,  or  upon  the  general  proposition  that  damages  must 
in  all  cases  be  commensurate  with  the  injury  sustained  to  the 
extent  that  the}'  were  in  the  contemplation  of  the  parties  to  a 
contract,  or  should  have  been  foreseen  as  the  probable  con- 
sequences of  his  conduct  by  the  negligent  defendant.  These 
decisions  are  not  in  our  opinion  sustained  by  an}'  of  the 
analogies  by  which  they  are  sought  to  be  supported.  These 
cases  are  totalby  different  from  those  in  which  damages  for 
mental  suffering  have  been  allowed,  and  it  is  notable  that  in 
no  one  of  them  is  there  a  citation  of  a  single  case,  decided 
prior  to  the  case  of  So  Relle,  in  which  an  action  for  breach 
of  contract  (except  actions  for  breach  of  contract  of  mar- 
riage), or  in  an  action  on  the  case  for  injuries  resulting  from 
mere  negligence,  damages  were  allowed  for  mental  pain  dis- 
connected from  physical  injury.  There  is  an  absence  of 
authority  upon  the  direct  question  of  the  right  of  recovery 
for  mere  grief  or  disappointment,  probably  for  the  reason 
that  prior  to  the  So  Relle  case  the  bar  had  not  entertained 
the  view  that  an  action  therefor  could  be  maintained,  but 
there  are  several  cases  in  which  responsibility  for  mental 
disturbance  by  reason  of  fright  has  been  considered.  It  has 
been  held  that  fright  attending  an  accident,  resulting  from 
negligence  by  which  bodily  injury  was  sustained,  was  prop- 
erly considered  by  the  jury  in  awarding  damages.  Seger  v. 
Town  of  Barkhamsted,  22  Conn.  290  ;  Masters  v.  Town  of 
Warren,  27  Conn.  293  ;  Cooper  v.  Mullins,  30  Ga.  146  ; 
Canning  v.  Williamstown,  1  Cush.  451.  But  where  there  is 
no  bodily  injury  damages  for  fright  should  not  be  given. 
Canning  v.  Williamstown  ;  Commissioners  v.  Coultas,  L.  R. 
13  App.  Cas.  222  ;  Wyman  v.  Leavitt,  71  Me.  227 ;   Lynch . 


380  CASES  ON  DAMAGES. 

v.  Knight,  9  H.  L.  Cas.  577,  598.  In  Flemington  v.  Smithers, 
2  Car.  &  P.  292,  the  plaintiff  sued  to  recover  for  injuries 
inflicted  upon  his  minor  son  and  servant  by  the  negligence  of 
the  defendant,  and  claimed  compensation  for  the  injury  to  his 
parental  feelings,  but  the  claim  was  rejected.  We  are  not 
disposed  to  depart  from  what  we  consider  the  old  and  settled 
principles  of  law,  nor  to  follow  the  few  courts  in  which  the 
new  rule  has  been  announced.  The  difficulty  of  applying  any 
measure  of  damages  for  bodily  injury  is  universally  recognized 
and  commented  on  by  the  courts.  But  in  that  class  of  cases 
demands  for  simulated  or  imaginary  injuries  are  far  less 
likely  to  be  made  than  will  be  those  in  suits  for  mental  pain 
alone.  No  one  but  the  plaintiff  can  know  whether  he  really 
suffers  any  mental  disturbance,  and  its  extent  and  severit}' 
must  depend  upon  his  own  mental  peculiarit}'.  In  the 
nature  of  things,  money  can  neither  palliate  nor  compensate 
the  injury  he  has  sustained.  "  Mental  pain  and  anxiety 
the  law  cannot  value,  and  does  not  pretend  to  redress, 
when  the  unlawful  act  complained  of  causes  that  alone." 
Lynch  v.  Knight,  9  H.  L.  Cas.  577. 

The  rapid  multiplication  of  cases  of  this  character  in  the 
State  of  Texas  since  the  case  of  So  Relle  indicates,  to  some 
extent,  the  field  of  speculative  litigation  opened  up  b}*  that 
decision.  The  course  of  decision  shows  how  difficult  the 
subject  is  of  control.  In  So  Relle's  case  it  was  held  that 
the  sendee  of  the  undelivered  message,  who  had  paid  nothing 
for  its  transmission,  might  recover  for  the  mental  suffering 
flowing  from  its  non-deli  very.  In  Railroad  Co.  v.  Levy,  59 
Tex.  564,  that  case  was  overruled,  in  so  far  as  the  right  of 
action  was  recognized  in  the  sendee,  and  it  was  held  that 
only  the  person  entering  into  the  contract  with  the  company 
might  sue.  But  in  Telegraph  Co.  v.  Cooper,  71  Tex.  507, 
where  the  husband  had  sent  the  despatch  calling  a  physician 
to  attend  his  wife  in  her  confinement,  it  was  held  that  the 
husband  (the  sender  of  the  message)  could  not  recover  for 
his  mental  suffering  caused  by  the  negligence  of  the  company 
in  failing  to  deliver  the  message,  but  that,  suing  in  right  of 


WESTERN   UNION  TEL.  CO.   v.  ROGERS.  381 

his  wife  (who  was  not  a  party  to  the  contract  with  the  corn- 
pan}),  he  might  recover  for  her  mental  suffering.  It  is  held 
in  that  State  that  the  telegraph  company  must  be  informed, 
either  by  the  face  of  the  message  or  by  extraneous  notice,  of 
the  relationship  of  the  parties  and  the  purport  of  the  message, 
to  warrant  the  recovery  of  damages  for  mental  suffering.  It 
has  been  decided  that  this  despatch  did  not  sufficiently 
indicate  these  facts  :  "Willie  died  yesterdaj-  at  six  o'clock; 
will  be  buried  at  Marshall,  Sunday  evening  "  (Telegraph  Co. 
v.  Brown,  71  Tex.  723),  while  the  following  one  did,  "  Billie 
is  very  low  ;  come  at  once  "  (Telegraph  Co.  v.  Moore,  76 
Tex.  66).  And  a  distinction  seems  to  be  drawn  between  the 
negligence  of  failing  to  deliver  a  despatch  which  causes 
mental  pain  and  suffering  and  failing  to  deliver  one  which,  if 
delivered,  would  relieve  such  suffering.  In  Rowell  v.  Tele- 
graph Co.,  75  Tex.  26,  the  plaintiff  and  his  wife  had 
received  information  of  the  dangerous  illness  of  her  mother. 
Subsequently  a  despatch  was  sent  containing  information  of 
the  mother's  improved  condition.  This  despatch  the  com- 
pany failed  to  deliver.  Suit  was  brought,  but  recovery  was 
denied,  the  court  saying:  "The  demurrer  was  properly 
sustained.  The  damage  here  complained  of  was  the  mere 
continued  anxiet\T  caused  by  the  failure  promptly  to  deliver 
the  message.  Some  kind  of  unpleasant  emotion  in  the  mind 
of  the  injured  part}*  is  probably  the  result  of  a  breach  of 
contract  in  most  cases.  But  the  cases  are  rare  in  which  such 
emotion  can  be  held  to  be  an  element  of  the  damages  result- 
ing from  the  breach.  For  injury  to  feelings  in  such  cases, 
the  courts  cannot  give  redress.  Any  other  rule  would  result 
in  intolerable  litigation."  The  manifest  effect  of  this  decision 
is  to  deny  to  a  party  injured  redress  for  mental  suffering  con- 
templated by  the  parties  to  the  contract  as  the  probable 
consequence  of  its  breach.  The  distinction  drawn  b}'  the 
court  is  so  unsubstantial  that  it  was  evidently  resorted  to 
for  the  purpose  of  obstructing  the  tide  of  "  intolerable  liti- 
gation "  flowing  from  the  decisions  following  the  So  Relle 
case.      Kentucky,  Tennessee,   Indiana,  and  Alabama  have 


382  CASES   ON   DAMAGES. 

but  recently  established  the  rule,  the  dangers  and  difficulties 
of  which  are  becoming  apparent  in  Texas.  The  "  intolerable 
litigation  "  invited  and  appearing  in  Texas  has  not  yet  fairly 
commenced  in  those  States.  It  will,  however,  appear  in  due 
time,  and  the  courts  will  be  forced  to  resort  to  refined 
limitations,  as  Texas  has  done,  to  restrict  it.  We  prefer 
the  safety  afforded  by  the  conservatism  of  the  old  law,  as 
we  understand  it  to  be,  and  are  of  opinion  that  no  recovery 
for  mental  suffering  can  be  had  under  the  circumstances  of 
this  case.  Dorrah  v.  Railroad  Co.,  65  Miss.  14  ;  Salina  v. 
Trosper,  27  Kan.  544  ;  West  v.  Telegraph  Co.,  39  Kan.  93  ; 
Russell  v.  Telegraph  Co.,  3  Dak.  315  ;  Wyman  v,  Leavitt, 
71  Me.  227 ;  Lynch  v.  Knight,  9  H.  L.  Cas.  577  ;  Commis- 
sioners v.  Coultas,  L.  R.  13  App.  Cas.  222  ;  Railroad  Co.  v. 
Stables,  62  111.  313  ;  Johnson  v.  Wells,  6  Nev.  224  ;  2  Greenl. 
Ev.  §  267 ;  Wood's  Mayne,  Dam.  73. 

Reversed  and  remanded. 


LARSON  v.  CHASE. 

Minnesota,  1891.    47  Minn.  307. 

Mitchell,  J.1  This  was  an  action  for  damages  for  the  un- 
lawful mutilation  and  dissection  of  the  body  of  plaintiff's 
deceased  husband.  The  complaint  alleges  that  she  was  the 
person  charged  with  the  burial  of  the  body,  and  entitled  to 
the  exclusive  charge  and  control  of  the  same.  The  only 
damages  alleged  are  mental  suffering  and  nervous  shock.  A 
demurrer  to  the  complaint,  as  not  stating  a  cause  of  action, 
was  overruled,  and  the  defendant  appealed.  .  .  . 

Every  injury  imports  a  damage.  Hence  the  complaint 
stated  a  cause  of  action  for  at  least  nominal  damages.  We 
think  it  states  more.  There  has  been  a  great  deal  of  miscon- 
ception and  confusion  as  to  when,  if  ever,  mental  suffering,  as 
a  distinct  element  of  damage,  is  a  subject  for  compensation 

1  Part  of  the  opinion  is  omitted. 


LARSON  v.   CHASE.  383 

This  has  frequently  resulted  from  courts  giving  a  wrong  rea- 
son for  a  correct  conclusion  that  in  a  given  case  no  recovery 
could  be  had  for  mental  suffering,  placing  it  on  the  ground 
that  mental  suffering,  as  a  distinct  element  of  damage,  is 
never  a  proper  subject  of  compensation,  when  the  correct 
ground  was  that  the  act  complained  of  was  not  an  infraction 
of  any  legal  right,  and  hence  not  an  actionable  wrong  at  all, 
or  else  that  the  mental  suffering  was  not  the  direct  and  proxi- 
mate effect  of  the  wrongful  act.  Counsel  cites  the  leading 
case  of  Lynch  v.  Knight,  9  H.  L.  Cas.  577-598.  We  think 
he  is  laboring  under  the  same  misconception  of  the  meaning 
of  the  language  used  in  that  case  into  which  courts  have  not 
infrequently  fallen.  Taking  the  language  in  connection  with 
the  question  actually  before  the  court,  that  case  is  not  author- 
ity for  defendant's  position.  It  is  unquestionably  the  law,  as 
claimed  by  appellant,  that  "  for  the  law  to  furnish  redress 
there  must  be  an  act  which,  under  the  circumstances,  is 
wrongful ;  and  it  must  take  effect  upon  the  person,  the  prop- 
erty, or  some  other  legal  interest,  of  the  party  complaining. 
Neither  one  without  the  other  is  sufficient."  This  is  but  an- 
other way  of  saying  that  no  action  for  damages  will  lie  for  an 
act  which,  though  wrongful,  infringed  no  legal  right  of  the 
plaintiff,  although  it  may  have  caused  him  mental  suffering. 
But,  where  the  wrongful  act  constitutes  an  infringement  on  a 
legal  right,  mental  suffering  may  be  recovered  for,  if  it  is  the 
direct,  proximate,  and  natural  result  of  the  wrongful  act.  It 
was  early  settled  that  substantial  damages  might  be  recovered 
in  a  class  of  torts  where  the  only  injury  suffered  is  mental,  — 
as,  for  example,  an  assault  without  physical  contact.  So,  too, 
in  actions  for  false  imprisonment,  where  the  plaintiff  was  not 
touched  by  the  defendant,  substantial  damages  have  been  re- 
covered, though  physically  the  plaintiff  did  not  suffer  any 
actual  detriment.  In  an  action  for  seduction  substantial  dam- 
ages are  allowed  for  mental  sufferings,  although  there  be  no 
proof  of  actual  pecuniary  damages  other  than  the  nominal 
damages  which  the  law  presumes.  The  same  is  true  in 
factions  for  breach  of  promise  of  marriage.    Wherever  the  act 


384  CASES  ON  DAMAGES. 

complained  of  constitutes  a  violation  of  some  legal  right  of 
the  plaintiff,  which  always,  in  contemplation  of  law,  causes 
injury,  he  is  entitled  to  recover  all  damages  which  are  the 
proximate  and  natural  consequence  of  the  wrongful  act.  That 
mental  suffering  and  injury  to  the  feelings  wouM  be  ordinarily 
the  natural  and  proximate  result  of  knowledge  that  the  re- 
mains of  a  deceased  husband  had  been  mutilated  is  too  plain 
to  admit  of  argument.  In  Meagher  v.  Driscoll,  99  Mass.  281, 
where  the  defendant  entered  upon  plaintiff's  land,  and  dug 
up  and  removed  the  dead  body  of  his  child,  it  was  held  that 
plaintiff  might  recover  compensation  for  the  mental  an- 
guish caused  thereby.  It  is  true  that  in  that  case  the  court 
takes  occasion  to  repeat  the  old  saying  that  a  dead  body  is 
not  property,  and  makes  the  gist  of  the  action  the  trespass 
upon  plaintiff's  land  ;  but  it  would  be  a  reproach  to  the  law 
if  a  plaintiff's  right  to  recover  from  mental  anguish  resulting 
from  the  mutilation  or  other  disturbance  of  the  remains  of  his 
dead  should  be  made  to  depend  upon  whether  in  committing 
the  act  the  defendant  also  committed  a  technical  trespass 
upon  plaintiff's  premises,  while  everybody's  common  sense 
would  tell  him  that  the  real  and  substantial  wrong  was  not 
the  trespass  on  the  land,  but  the  indignity  to  the  dead. 

Order  affirmed. 


RENIHAN  v.  WRIGHT. 

Indiana,  1890.     125  Ind  536. 

Coffey,  J.1  In  this  case  the  complaint  alleges  that  ap- 
pellees, being  husband  and  wife,  on  the  10th  day  of  Decem- 
ber, 1884,  employed  the  appellants,  who  were  undertakers 
and  funeral  directors,  in  the  city  of  Indianapolis,  to  take 
charge  of  and  safely  keep,  in  a  secure  vault,  the  body  of  the 

1  Part  of  the  opinion  is  omitted. 


RENIHAN  v.  WRIGHT.  385 

deceased  daughter  of  the  appellees  until  such  time  as  they 
might  be  prepared  and  ready  to  inter  the  same  ;  that  appel- 
lants, in  pursuance  of  such  employment,  took  charge  and 
possession  of  said  remains  and  placed  the  same  in  a  vault, 
and  that  the  appellees  compensated  the  appellants  to  safely 
keep  the  said  remains  therein  until  such  time  as  they  mio-ht 
be  prepared  and  ready  to  inter  the  same  ;  that  the  said  ap- 
pellants did  not  safely  and  securely  keep  said  remains,  but 
carelessly  and  negligently  took  or  allowed  the  same  to  be 
taken  and  buried,  or  otherwise  disposed  of,  and  wrongfully 
refused,  and  still  refuse,  to  inform  the  appellees  where  said 
remains  have  been  removed  to,  further  than  to  say  :  "  Your 
child  is  in  Ohio;"  that  by  reason  thereof  appellees  have 
suffered  great  distress  of  mind,  and  are  damaged  in  the  sum 
of  five  hundred  dollars,  etc.  The  court  overruled  a  demurrer 
to  this  complaint,  whereupon  the  appellants  filed  an  answer 
in  three  paragraphs. 

The  court  sustained  a  demurrer  to  the  second  paragraph  of 
said  answer,  and  a  trial  of  the  cause  by  a  jury  upon  issues 
formed  resulted  in  a  verdict  for  the  appellees,  upon  which 
the  court,  over  a  motion  for  a  new  trial,  rendered  judg- 
ment. 

The  assignment  of  error  calls  in  question  the  correctness 
of  the  ruling  of  the  court  in  overruling  a  demurrer  to  the 
complaint,  in  sustaining  a  demurrer  to  the  second  paragraph 
of  the  answer,  and  in  overruling  the  motion  of  the  appellants 
for  a  new  trial.  .  .  . 

The  only  matter  urged  under  the  assignment  of  error, 
calling  in  question  the  action  of  the  court  in  overruling  the 
motion  for  a  new  trial,  relates  to  the  instructions  in  the  cause. 
The  court  instructed  the  jury  that  in  assessing  the  damages 
they  might  take  into  consideration  the  mental  anguish  of  the 
appellees,  if  they  suffered  any  mental  anguish  on  account  of 
the  matters  set  out  in  the  complaint. 

In  this  instruction  we  do  not  think  the  court  erred.  The 
case  is  analogous  in  principle  to  the  case  of  Reese  v.  Western 
Union  Tel.  Co.,  123  Ind.  294.     In  that  case  it  was  held  that 

25 


386  CASES  ON  DAMAGES. 

the  telegraph  company  was  liable  for  the  mental  anguish 
occasioned  by  its  failure  to  deliver  a  message  in  case  of  ex- 
treme illness.  The  doctrine  announced  in  that  case  is  fulty 
supported  by  the  cases  of  Western  Union  Tel.  Co.  u.  Cooper, 
71  Texas,  507 ;  Hays  v.  Houston,  etc.,  E.  R.  Co.,  46  Texas, 
272;  Wadsworth  v.  Western  Union  Tel.  Co.,  86  Tenn.  695; 
Beasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Rep.  181.  The 
cases  rest  upon  the  reasonable  doctrine  that  where  a  person 
contracts,  upon  a  sufficient  consideration,  to  do  a  particular 
thing,  the  failure  to  do  which  may  result  in  anguish  and  dis- 
tress of  mind  on  the  part  of  the  other  contracting  party,  he  is 
presumed  to  have  contracted  with  reference  to  the  payment  of 
damages  of  that  character  in  the  event  such  damages  accrue 
b}T  reason  of  a  breach  of  the  contract  on  his  part.  .  .  . 

When  the  appellants  contracted  with  the  appellees  to  safely 
keep  the  body  of  their  daughter  until  such  time  as  they 
should  desire  to  inter  the  same,  they  did  so  with  a  knowl- 
edge of  the  fact  that  a  failure  on  their  part  to  comply  with 
the  terms  of  such  contract  would  result  in  injury  to  the  feel- 
ings of  the  appellees,  and  they  must,  therefore,  be  held  to 
have  contracted  with  reference  to  damages  of  that  character, 
in  the  event  of  a  breach  of  the  contract  on  their  part. 


Section  3.  —  Aggravation  and  Mitigation. 

GRABLE  v.  MARGRAVE. 

Illinois,  1842.     4  111.  372. 

Treat,  J.  This  was  an  action  of  trespass  on  the  case,  in- 
stituted in  the  Gallatin  Circuit  Court,  by  Margrave  against 
Grable,  for  the  seduction  of  the  daughter  of  Margrave.  On 
the  trial,  the  court  permitted  the  plaintiff  to  introduce  evi- 
dence in  relation  to  the  pecuniary  ability  of  the  defendant. 
The  court  also  permitted  the  plaintiff  to  introduce  evidence 


GRABLE  v.   MARGRAVE.  387 

tending  to  show  that  the  plaintiff  was  a  poor  man,  in  a  pecu- 
niary point  of  view.  To  these  decisions  of  the  court,  the  de- 
fendant excepted,  and  judgment  having  passed  against  him, 
he  now  assigns  them  for  error. 

This  action  was  originally  given  to  the  master,  to  enable 
him  to  recover  damages  for  the  loss  of  service  occasioned  by 
the  seduction  of  his  servant.  He  was  restricted,  in  his  re- 
covery, to  the  damages  resulting  from  the  loss  of  service. 
The  loss  of  service  is  still  the  legal  foundation  of  the  right  to 
recover,  and  the  father  cannot  maintain  the  action  without 
averring  in  his  declaration,  and  proving  on  the  trial,  that, 
from  the  consequences  of  the  seduction,  his  daughter  is  less 
able  to  perform  the  duties  of  servant.  But  the  rule  of  dam- 
ages originally  governing  the  action,  has,  for  a  long  time, 
been  so  far  extended,  as  to  authorize  the  father  to  recover 
damages  beyond  the  mere  loss  of  service,  and  expenses  con- 
sequent on  the  seduction.  Lord  Ellenborough,  in  the  case  of 
Irwin  v.  Dearman,  1  East,  24,  says,  however  difficult  it  may 
be  to  reconcile  to  principle  the  giving  of  greater  damages,  the 
practice  is  become  inveterate,  and  cannot  now  be  shaken.  In 
Tullidge  v.  Wade,  3  Wils.  18,  Chief  Justice  Wilmot  remarks, 
"Actions  of  this  sort  are  brought  for  example's  sake,  and 
although  the  plaintiff's  loss,  in  this  case,  may  not  really 
amount  to  the  value  of  twenty  shillings,  yet  the  jury  have 
done  right  in  giving  liberal  damages."  The  court,  in  Tillet- 
son  v.  Cheatham,  3  Johns.  56,  quoting  the  foregoing  decisions 
with  approbation,  says,  "The  actual  pecuniary  damages,  in 
actions  for  defamation,  as  well  as  in  other  actions  for  torts, 
can  rarely  be  computed,  and  are  never  the  sole  rule  of  assess- 
ment." And  it  has  been  repeatedly  held,  that,  in  this  action, 
the  father  may  recover  not  only  the  damages  he  has  sustained, 
by  the  loss  of  service,  and  the  payment  of  necessary  expenses, 
but  the  jury  may  award  him  compensation  for  the  dishonor 
and  disgrace  cast  upon  him  and  his  family,  and  for  the  being 
deprived  of  the  society  and  comfort  of  his  daughter.  Tn  vin- 
dictive actions,  and  this  is  now  regarded  as  one,  the  jury  are 
always  permitted  to  give  damages,  for  the  double  purpose  of 


388  CASES  ON  DAMAGES. 

setting  an  example,  and  of  punishing  the  wrong-doer.  For 
these  purposes,  proof  of  the  condition  in  life,  and  circum- 
stances, as  well  of  the  father  and  his  family  as  of  the  part}* 
committing  the  injury,  is  highly  proper,  and  should  be  given 
to  the  jury,  and  considered  by  them  in  estimating  the  dam- 
ages. 2  Wils.  206  ;  3  Johns.  56  ;  3  Stark.  Ev.  1309  ;  4  Phil. 
Ev.  218. 

The  pecuniary  ability  of  the  defendant  is  peculiarly  the 
proper  subject  of  inquir}*.  If  the  jury  are  permitted  to  awe 
others,  by  way  of  the  example,  and  to  punish  the  defendaut,  his 
wealth  and  standing  in  society  will,  in  a  considerable  degree, 
determine  the  amount  of  damages.  A  verdict  which,  as 
against  one  individual,  would  be  sufficient  for  all  purposes, 
would,  as  against  another,  be  scarcely  felt,  by  reason  of  the 
difference  in  their  ability  to  respond  in  damages.  The  court, 
therefore,  decided  correctly,  in  admitting  the  evidence  in  rela- 
tion to  the  pecuniary  ability  of  the  defendant.  Upon  the 
other  point,  we  are  clearly  of  the  opinion  the  court  decided 
right  in  admitting  evidence  showing  the  pecuniary  condition 
of  the  plaintiff.  This  evidence  does  not  go  to  the  jury,  as  was 
stated  in  the  argument,  for  the  purpose  of  exciting  their 
prejudices  in  favor  of  the  plaintiff,  because  he  is  a  poor  man, 
but  to  enable  them  to  understand  fully  the  effect  of  the  in- 
jur}* upon  him,  and  to  give  him  such  damages  as  his  peculiar 
condition  in  life  and  circumstances  entitle  him  to  receive.  It 
is  easily  perceived  how  a  poor  man  would  be  more  seriousby 
injured  by  the  loss  of  the  service  of  his  daughter,  and  the 
payment  of  expenses  necessarily  incurred  in  consequence  of 
her  seduction,  than  the  individual  more  favorably  circum- 
stanced as  to  property.  With  the  one,  the  injury  might,  for 
a  time,  deprive  him  and  his  family  of  many  of  the  necessaries 
and  comforts  of  life ;  while,  with  the  othei',  no  such  result 
would  be  produced. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


SAYRE   v.    SAYRE.  389 

SAYRE  v.   SAYRE. 

New  Jersey  Supreme  Court,  1855.     1  Dutch.  235. 

Green,  C.J.1  In  an  action  for  slanderous  words  charging 
the  plaintiff  with  larceny,  the  defendant,  on  the  trial,  offered 
in  evidence,  in  mitigation  of  damages,  the  general  bad  char- 
acter of  the  plaintiff  before  and  at  the  time  of  the  alleged 
slander.  The  court  admitted  the  evidence,  so  far  as  it  re- 
lated to  the  plaintiffs  character  for  honesty  and  integrity, 
but  rejected  evidence  of  his  general  bad  character.  This 
constitutes  the  ground  of  error. 

Two  questions  are  necessarily  involved  in  the  determina- 
tion of  the  error  assigned,  viz. :  1.  Whether  in  an  action  of 
slander,  evidence  of  the  plaintiff's  general  bad  character  is 
admissible  in  mitigation  of  damages.  2.  Whether  such  evi- 
dence, if  admissible,  is  to  be  restricted  to  those  particular 
traits  of  character  involved  in  the  slanderous  words. 

Evidence  touching  the  plaintiff's  character,  in  mitigation 
of  damages,  may  be  offered  to  show  that  the  defendant 
merely  repeated  rumors  that  were  in  circulation,  and  that  the 
slander  was  not  wantonly  originated  by  him  ;  with  the  view 
of  showing  the  animus  with  which  the  words  were  spoken, 
in  order  to  diminish  the  extent,  or  to  qualify  the  character  of 
the  defendant's  malice,  and  thereby  to  diminish  the  damages. 
With  this  view  the  evidence  was  offered,  and  held  b}'  this 
court  to  be  admissible,  in  Cook  v.  Barclay,  1  Penn.  L69, 
and,  with  the  same  view,  it  has  been  frequently  admitted  in 
the  English  courts.  Or  the  evidence  may  be  offered  to  show 
that  the  plaintiff,  being  a  man  of  bad  character,  is  therefore 
entitled  to  less  damages,  on  the  ground  that  a  person  of  dis- 
paraged fame  is  not  entitled  to  the  same  measure  of  damages 
as  one  with  an  unblemished  reputation.  In  this  last  aspect, 
the  evidence  in  the  present  case  is  offered,  viz.,  to  show  the 
value  of  the  thing  alleged  to  be  injured. 

1  Part  of  each  opinion  is  omitted. 


390  CASES  ON  DAMAGES. 

Regarding  it  as  a  mere  question  of  value,  aside  from  tech- 
nical principle,  it  is  difficult  to  perceive  on  what  ground  the 
evidence  can  be  excluded.  The  plaintiff  brings  his  action  to 
recover  damages  for  an  injury  to  his  reputation  ;  to  the  esti- 
mation in  which  he  is  held  among  his  neighbors  and  acquaint- 
ances. This  is  the  gravamen  of  the  complaint ;  for  this  the 
juiy  are  to  assess  damages.  Upon  what  principle  are  these 
damages  to  be  assessed ;  upon  what  scale  are  they  to  be 
graduated,  except  in  reference  to  the  value  of  the  article 
injured  ? 

The  law  assumes  a  good  character  to  be  of  equal  value  to 
every  man.  It  presumes  that  every  man  is  "of  good  name 
and  fame  "  until  the  contrary  is  proved.  The  plaintiff,  there- 
fore, is  not  put  upon  proof  of  his  good  character,  or  of  its 
precise  value.  But  is  not  the  defendant  entitled  to  show  that 
the  plaintiff 's  character  is  not  good,  that  his  reputation  has 
sustained  but  little  injury,  and  that,  consequently,  he  is  en- 
titled to  but  small  damages  by  way  of  reparation.  If,  in  esti- 
mating damages,  there  be  any  distinction  between  the  best 
and  the  worst  character,  the  jury  ought  to  be  furnished  with 
the  means  of  making  a  proper  estimate.  To  exclude  the 
evidence  is  either  to  affirm  that  in  the  admeasurement  of 
damages  in  actions  of  slander,  there  is  no  distinction  between 
the  most  exalted  character  and  the  most  debased,  or,  admit- 
ting the  distinction,  to  maintain  that  the  jury  must  form 
their  estimate  of  character  without  evidence. 

The  defendant  cannot,  under  the  general  issue,  give  in 
evidence  the  truth  of  the  words  spoken,  because  this  is  mat- 
ter of  justification,  and  constitutes  a  complete  defence  to  the 
action.  It  is  excluded,  therefore,  from  being  offered  in  evi- 
dence under  the  general  issue  by  virtue  of  a  technical  rule  of 
pleading,  which  requires  matters  of  justification  to  be  pleaded 
in  bar  of  the  action. 

Elmer,  J.  Much  diversity  of  opinion  has  prevailed  in  re- 
gard  to  the  true  grounds  upon  which  damages  may  be  given 
in  actions  for  torts.  Admitting,  however,  for  the  purposes 
of  the  present  inquiry,  without  meaning  to  assume  that  this 


SAYRE  v.   SAYRE.  391 

opinion  is  correct,  that  punitive  or  exemplary  damages  are 
inadmissible,  and  that  the  damages  in  such  cases  must  be 
confined  to  such  as  will  be  compensation,  recompense,  or 
satisfaction  to  the  plaintiff,  for  the  injury  he  has  actually 
received  from  the  defendant,  and  that  no  facts  or  circum- 
stances can  be  proved,  on  either  side,  but  such  as  aggravate 
or  mitigate  the  injury  itself;  I  think  it  is  very  clear,  that 
where  the  injury  complained  of  is  one  to  the  reputation  of 
the  party,  as  is  the  case  in  slander,  the  general  character  of 
both  parties  does  necessarily  affect  the  injury.  The  defend- 
ant's rank  and  influence  in  society,  as  increased  b}-  his  wealth, 
his  talents,  or  his  office,  will  affect  the  extent  of  the  injury  he 
has  inflicted,  and  are  therefore  proper  subjects  of  inquiiy. 
So  the  plaintiffs  position  in  these  respects  is  in  like  manner 
directly  involved,  and  will  depend  more  or  less  upon  his 
general  character  in  society.  The  object  of  his  suit  is  not 
simply  to  vindicate  his  character  on  the  point  which  has  been 
assailed,  by  showing  that  the  charge  is  false,  as  well  as  ma- 
licious, but  to  obtain  such  damages  as  will  compensate,  so 
far  as  damages  can  compensate,  for  the  injury  done  to  his 
feelings,  and  to  his  reputation  in  general.  No  tribunal  can 
properly  determine  the  extent  of  that  injury,  or  approximate 
the  proper  damage,  without  being  apprised  of  his  true  situa- 
tion in  life.  It  was  held  b}-  the  Supreme  Court  of  North 
Carolina,  in  the  case  of  Sample  v.  Wynn,  1  Busbee,  319,  not 
cited  on  the  argument,  that  the  plaintiff  was  entitled  to  give 
evidence  in  chief  of  his  general  good  character  in  aggrava- 
tion, it  being  a  general  principle  that  good  character  ought 
to  be  presumed.  The  correctness  of  this  decision  may  be 
doubted,  but  I  am  entirely  satisfied  that  the  defendant  should 
be  permitted  to  show  plaintiff's  bad  general  character  in 
mitigation  of  the  damages,  upon  the  plea  of  not  guilty,  if 
he  thinks  proper  to  do  so. 

If  character  be  involved  in  such  a  case,  it  is  not  merely 
character  as  to  the  matter  of  the  charge,  which  is  admitted 
by  that  plea  to  be  false,  but  character  in  general.  It  is  true 
that  a  case  may  be  imagined  where  a  false  charge,  affecting 


392  CASES  ON  DAMAGES. 

character  in  some  particular  matter,  may  be  as  much,  and 
possibly  more  injurious,  and  deserve  heavier  damages,  be- 
cause of  the  plaintiff's  want  of  a  good  character  in  some 
other  particular ;  but  of  this  the  jury  must  judge  when  the 
circumstances  are  fully  before  them.  Ordinarily  it  will  be 
otherwise.  In  general,  a  man  who  has  really  lost  the  re- 
spect of  his  fellows,  because  of  a  tainted  reputation  in  any 
particular,  will  not  suffer  the  same  injury  in  feeling  or  other- 
wise by  a  slander,  and  is  not  entitled  to  the  same  amount  of 
damages  as  one  who  has  hitherto  borne  an  irreproachable 
name.  A  man  who,  because  he  is  universally  esteemed  a 
liar,  is  not  admitted  to  the  association  of  the  truthful  and 
virtuous,  cannot  suffer  so  much  injury  by  being  falsely 
charged  as  a  thief,  as  one  whose  character  had  no  such 
taint.  A  virtuous  woman,  moving  in  reputable  society,  will 
be  very  differently  affected  by  the  charge  of  larceny,  from 
one  whose  associations  are  with  the  vile  and  profligate.  And 
it  is  to  be  remembered  that  it  is  not  the  mere  opinion  of 
the  witness  that  is  to  be  sought,  but  his  knowledge  of  the 
fact  of  the  party's  general  character  and  reputation  among 
his  neighbors. 

The  argument  most  pressed  on  behalf  of  the  defendant  in 
error,  in  answer  to  this  reasoning,  was  that  one  who  has  lost 
character  in  one  particular  has  more  need  to  vindicate  it 
in  others,  and  of  course  more  claims  on  the  law.  But  his 
right  to  the  protection  of  the  law  is  not  questioned.  His 
want  of  a  good  character  is  no  justification  of  a  slander.  So 
far  as  a  slander  affects  his  feelings,  and  is  injurious  to  him,  he 
is  entitled  to  complete  indemnification,  and  if  the  damages 
may  be  legally  punitive,  to  more  than  compensation.  The 
single  question  involved  is,  not  his  right  to  ample  redress, 
but  the  true  measure  of  redress  in  a  case  where  it  is  the  per- 
son onl}T,  and  not  propert}',  that  has  been  assailed.  Who 
and  what  the  person  is  must  necessarily  come  in  question. 
In  such  cases,  there  can  be  no  certain  measure  of  damages ; 
the  jury  are  the  proper  judges  of  their  extent.  To  arrive  at 
this  intelligently,  they  must  not  only  be  informed  of  the  cir- 


PALMER  v.   CROOK.  393 

cumstances  attending  the  speaking  of  the  slanderous  words, 
but  of  the  standing  and  position  of  the  parties.  Whatever 
rule  of  evidence  may  be  adopted  by  the  court,  the  jury  will 
instinctively  think  of  these  things,  and  be  influenced  by 
them.  If  made  a  subject  of  direct  evidence  upon  the  trial, 
they  will  be  subject  to  the  control  and  the  comment  of  the 
court,  instead  of  being,  as  otherwise  they  will  be,  a  matter 
of  speculation  and  surmise  or  of  erroneous  statement  in  the 
jury  room. 

Justices  Potts  and  Vkedenburgu  concurred. 


PALMER  v.  CROOK. 

Massachusetts,  1856.     7  Gray,  418. 

Action  of  toft  for  seducing  the  plaintiff's  wife,  and  alien- 
ating her  affections  from  him.1 

At  the  trial  in  the  Court  of -Common  Pleas,  before  Bying- 
ton,  J.,  the  defendant  introduced  the  depositions  of  the  wife's 
father  and  mother,  tending  to  prove  that  the  plaintiff  had 
cruelly  treated  his  wife,  and  neglected  to  provide  for  her,  in 
consequence  of  which  she  had  returned  to  her  father's  house 
before  the  time  of  the  alleged  seduction. 

The  judge  also,  upon  the  motion  of  the  plaintiff,  and 
against,  the  defendant's  objection,  rejected  other  parts  of  the 
depositions,  containing  testimony  to  complaints  made  by  the 
plaintiff's  wife  of  his  ill  treatment  of  her  prior  to  the  alleged 
seduction. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  de- 
fendant alleged  exceptions. 

Bigelow,  J.  The  evidence  was  rightly  rejected,  as  being 
wholly  collateral  and  irrelevant  to  the  issue,  or  as  prov- 
ing facts  of  which  there  was  better  evidence  in  existence, 
except  those  parts  of  the  depositions  which  tended  to  show 
that  the  wife  of   the  plaintiff  complained  of  his   ill   treat- 

1  Tart  of  the  case  is  omitted. 


394  CASES  ON  DAMAGES. 

ment  of  her  prior  to  the  alleged  criminal  intercourse  with  the 
defendant. 

These  were  competent,  and  should  have  been  admitted. 
In  actions  for  criminal  conversation,  one  of  the  principal 
grounds  on  which  the  husband  is  allowed  to  recover  damages 
is,  that  by  the  wrongful  act  of  the  defendant  he  has  been 
deprived  of  the  confidence  and  affection  of  the  wife.  If  the 
defendant  invaded  domestic  peace,  destroyed  conjugal  felicity, 
and  by  his  solicitations  alienated  and  seduced  the  wife's  af- 
fections from  a  kind  and  tender  husband,  he  inflicted  a  much 
more  grievous  wrong,  and  incurred  a  far  heavier  penalty  in 
damages,  than  he  would  have  done  if  love  aud  harmony 
and  affectionate  intercourse  had  been  previously  impaired 
or  lost,  through  the  misconduct  and  cruel  treatment  of  the 
husband. 

The  state  of  the  wife's  mind  and  feelings  towards  the  hus- 
band before  the  alleged  infidelity  is  therefore  directly  in  issue, 
as  bearing  on  the  question  of  damages  ;  and  it  may  be  shown, 
in  the  usual  mode  in  which  proof  of  such  a  fact  is  made  in 
courts  of  law,  by  evidence  of  declarations  and  statements  of 
the  wife,  indicating  the  condition  of  her  affections  towards 
her  husband  during  their  cohabitation  and  prior  to  the 
alleged  seduction. 

Exceptions  sustained. 


SMITH  v.  HOLCOMB. 

Massachusetts,  1868.     99  Mass.  552. 

Tort  for  assault  and  battery  by  blows  on  the  plaintiffs 
head.1  The  court  instructed  the  jury  that  the  plaintiff,  if 
entitled  to  recover  at  all,  could  recover  for  all  the  direct  in- 
jurious results  to  him  by  reason  of  this  assault,  and  could 
also  recover  for  the  insult  and  indignity  inflicted  upon  him 
by  reason  of  the  blows  given  him  by  the  defendant.     The 

1  The  statement  of  facts  has  been  abridged,  and  part  of  the  opinion 
omitted. 


CURRIER  v.  SWAN.  395 

defendant  excepted  to  so  much  of  the  instructions  as  related 
to  the  insult  and  indignity. 

Chapman,  C.J.  The  insult  and  indignity  inflicted  upon  a 
person  bjT  giving  him  a  blow  with  anger,  rudeness,  or  inso- 
lence, occasion  mental  suffering.  In  many  cases  they  consti- 
tute the  principal  element  of  damage.  The}'  ought  to  be 
regarded  as  an  aggravation  of  the  tort,  on  the  same  ground 
that  insult  and  indignity  offered  by  the  plaintiff  to  the  de- 
fendant, which  provoked  the  assault,  may  be  given  in  evi- 
dence in  mitigation  of  the  damage.  Even  where  there  is  no 
insult  or  indignity,  mental  suffering  may  be  a  ground  of 
damage,  in  an  action  of  tort  for  an  injury  to  the  person. 
Canning  v.  Williamstown,  1  Cush.  451. 

Exceptions  overruled. 


CURRIER  v.   SWAN. 
Maine,  1874.     63  Me.  323. 

Peters,  J.1  An  affra}r  took  place  between  the  plaintiff  and 
one  of  the  defendants,  at  a  railroad  depot  in  the  afternoon, 
and  on  the  evening  of  the  same  day  that  defendant  with  the 
others  proceeded  to  the  plaintiff's  house,  and  inflicted  violence 
upon  him  there.  The  defendants  desired  to  show  what  took 
place  in  the  afternoon,  in  mitigation  of  damages  for  the  as- 
sault committed  afterwards.  The  justice  presiding  admitted 
in  evidence  the  fact  that  there  had  been  an  affray,  but 
excluded  evidence  of  the  details  of  it. 

The  ruling,  both  as  to  the  admission  and  exclusion  of  evi- 
dence, was  right.  The  admission  was  right,  because  it  was 
to  show  the  object  and  purpose  of  the  second  assault,  or  the 
state  of  mind  with  which  it  was  done.  Otherwise,  there 
would  have  been  nothing  to  indicate  to  the  jury  but  that  the 
house  was  entered  for  the  purpose  of  robbery  and  plunder,  or 
something  of  the  kind.  The  fact  of  a  previous  affray  might 
have  some  weight  upon  the  question  of  the  amount  of  dam* 

1  Part  of  the  opinion  is  omitted. 


396  CASES  ON  DAMAGES. 

ages  recoverable,  and  might  legitimately  be  regarded  as  a 
part  of  the  transaction  to  be  investigated  in  this  suit.  But 
the  further  evidence,  offered  and  excluded,  was  not  fairfv  a 
part  of  the  facts  involved  in  this  investigation.  The  assault 
complained  of  here  was  committed  at  another  time  and  at 
another  place,  and  mostly  by  other  parties.  It  was  imma- 
terial whether  the  fault  of  the  previous  aff ray  was  in  the  one 
or  the  other  party  concerned.  If  the  defendant  was  ever  so 
right  in  the  first  affray,  he  should  have  resorted  to  proper 
legal  remedies,  and  not  assume  to  take  the  law  into  his  own 
hands.  If  he  is  permitted  to  show  the  merits  of  the  contro- 
versy in  the  afternoon,  then  the  plaintiff  would  have  as  much 
right  to  show  the  provocation  that  led  him  into  that  affray, 
and  the  result  would  be,  the  trial  of  several  causes  in  one ; 
and,  as  said  in  Mathews  v.  Terry,  10  Conn.  459,  "the  jury 
would  be  distracted  with  a  multiplicity  of  questions  and 
issues."  The  early  and  leading  case  of  Avery  v.  Ray,  1 
Mass.  12,  decided  in  1812,  has  been  recognized  as  a  correct 
authority  upon  this  subject,  in  most  of  the  courts  in  this 
country,  ever  since.  It  has  been  invariably  followed  in 
Massachusetts,  in  many  subsequent  cases.  Of  course,  the 
general  principle  there  enunciated  maj'  be  modified  b}'  con- 
trolling circumstances  in  other  cases  ;  as  in  Prentiss  v.  Shaw, 
56  Me.  437,  cited  and  much  relied  on  by  these  defendants. 
That  case  was  decided  upon  its  peculiar  facts.  The  evidence 
introduced  in  mitigation  there  was  mainly  to  show  the  inno- 
cent intention  of  the  parties  sued.  They  supposed  (as  they 
claimed)  that  they  were  acting  under  an  official  right  to  act. 
They  had  received  (although  improperly)  an  order,  from 
persons  in  authority,  to  make  the  arrest.  Their  own  motive 
and  good  faith,  in  obeying  the  order,  had  much  to  do  with 
the  question  as  to  how  far  punitive  damages  should  be 
recovered.  So  in  the  case  at  bar,  as  much  evidence  was  ad- 
mitted as  would  fairly  show  what  the  motive  of  the  defend- 
ants was  in  the  assault  committed  by  them,  and  with  what 
coolness  and  deliberation,  or  otherwise,  the  act  was  done. 

Exceptions  and  motion  overruled. 


STOREY   v.   EARLY.  397 


STOREY  v.  EARLY. 
Illinois,  1877.     8G  111.  461. 

This  was  an  action  instituted  in  the  court  below  by 
Alice  A.  Early  against  "Wilbur  F.  Storey,  to  recover 
damages  for  the  publication  of  a  libel  in  the  newspaper 
known  as  The  Chicago  Times,  of  which  the  defendant  was 
the  proprietor. 

Breese,  J.1  The  sixth  instruction  for  plaintiff  was  improp- 
erly given  ;  it  in  substance  says  to  the  jury  that,  in  fixing  the 
amount  of  damages  to  be  awarded  as  compensation  to  plain- 
tiff for  the  injury  she  has  sustained,  "  the  wealth  and  stand- 
ing of  the  defendant "  might  properly  be  considered. 

It  is  not  perceived  bow  the  injury  actually  done  to  plain- 
tiff by  the  publication  of  this  libel  could  be  affected  either  by 
the  wealth  or  standing  of  Wilbur  F.  Store}-. 

This  is  not  a  slander  uttered  personally  by  the  defendant, 
nor  is  the  libellous  matter  contained  in  any  communication 
having  the  sanction  of  his  name.  The  extent  of  the  circula- 
tion of  the  newspaper  of  defendant,  and  the  character  and 
standing  of  that  newspaper  for  fairness,  justice,  and  truth, 
might  well  be  considered  upon  that  question.  The  wealth  of 
the  publisher  might  be  great  and  his  social  standing  high, 
and  3'et  the  paper  might  be  of  such  character  as  to  exert  but 
little  influence  upon  tbe  public  mind.  On  the  other  hand,  the 
publisher  might  be  insolvent,  and  bis  position  in  society  very 
low,  and  yet  the  paper  might  be  very  attractive  and  have  a 
very  large  circulation,  and  enjoy  the  confidence  of  the  public 
to  such  a  degree,  for  justice  and  truth,  that  statements  in  its 
columns  might  carry  great  weight. 

There  is  a  clear  distinction  between  a  publication  of  slan- 
derous matter  in  a  newspaper  as  a  matter  of  news,  and  the 

1  Only  part  of  the  opinion  is  given. 


398  CASES  ON  DAMAGES. 

publication  of  slanderous  matter  upon  the  personal  truthful- 
ness and  responsibility  of  the  defendant. 

Again,  the  injury  actually  suffered  in  no  sense  is  to  be 
measured  by  the  wealth  of  defendant.  It  must  be  observed 
that  this  instruction  does  not  relate  to  vindictive  or  punitive 
damages,  but  solely  to  compensatory  damages. 

For  the  errors  stated  the  judgment  must  be  reversed  and 
the  cause  remanded.  Judgment  reversed. 

Scott,  J.  That  part  of  the  opinion  bj7  Mr.  Justice 
Breese  which  condemns  an  instruction  given  for  plaintiff  is 
not  concurred  in  by  any  four  members  of  the  court,  and 
hence  the  views  expressed  have  no  sanction  from  the  court. 
The  only  cause  for  reversing  the  judgment,  which  has  the 
sanction  of  a  majority  of  the  court,  is  that  the  court  below 
erred  in  excluding  from  the  jury  certain  letters  received  by 
defendant,  which  it  is  said  contain  the  substance  of  the 
libellous  publication. 


DUVAL  v.  DAVEY. 
Ohio  Supreme  Court  Commission,  1877.     32  Oh.  St.  604. 

This  was  an  action  of  slander  for  charging  the  female  plain- 
tiff with  unchastity.  Defendant  offered  evidence  tending  to 
show  that  the  general  reputation  of  the  female  plaintiff  for 
chastity  at  the  time  when  and  at  the  place  where  the  words 
were  spoken,  was  bad ;  but  upon  objection  by  plaintiffs  the 
court  excluded  the  evidence.     Defendant  excepted.1 

Ashburn,  J.  Did  the  court  err  in  refusing  to  allow  de- 
fendant to  prove,  in  mitigation  of  damages,  plaintiff's  general 
reputation  for  chastit}T? 

This  question  is  not  without  difficulty.  The  rule,  as 
gathered  from  the  text-books,  is  by  no  means  uniform,  and 
the  reported  decisions  of  other  States  and  countries  are  in 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  Reporter 
Only  so  much  of  the  opinion  as  relates  to  this  exception  is  printed. 


DUVAL  v.  DAVEY.  399 

conflict  on  this  point.  Our  own  Supreme  Court,  in  Dewitt  v. 
Greenfield,  5  Ohio,  225,  limits  the  inquiry  to  the  "general 
good  or  bad  character  of  the  party."  The  reason  of  the  rule 
is  said  to  be,  "A  man  is  supposed  to  be  always  ready  to 
sustain  his  general  character,  but  not  to  meet  particular  re- 
ports." This  rule  is  too  contracted  to  meet  all  cases.  "When 
a  party  is  charged  with  a  particular  vice  of  character,  that 
particular  element  of  character  is  put  in  issue  by  the  general 
denial ;  and  the  party,  knowing  that  his  character  is  assailed 
in  a  particular  respect,  must  be  held  as  ready  to  sustain  his 
general  character  in  the  respect  in  which  it  is  attacked,  as  to 
sustain  it  as  a  whole. 

It  is  said  in  Dewitt  v.  Greenfield,  "  but  spreading  a  plea  of 
the  truth  of  the  words  on  the  record,  in  justification,  is  always 
an  aggravation  of  the  damages,  if  not  proven."  This  rule  of 
damages  has  been  changed  by  the  case  of  Rayner  v.  Kinney, 
14  Ohio  St.  237.  The  rule  that  inquiry  as  to  reputation  must 
be  confined  exclusively  to  general  good  or  bad  character, 
is  not  sound.  Indeed,  it  may  be  questioned  whether  the 
learned  judge,  who  wrote  the  opinion  in  that  case,  contem- 
plated that  the  rule,  as  announced,  should  cover  all  cases 
where  character  is  in  issue.  If  he  did,  the  opinion  contains 
evidence  of,  and  authority  for,  a  broader  rule.  He  says, 
"under  the  general  issue,  the  defendant,  in  mitigation  of 
damages,  ma}7  prove  that  the  plaintiff,  at  the  time  of  speak- 
ing the  words,  was  under  a  general  suspicion  of  having  been 
guilty  of  the  charge  imputed  to  him."  This  we  think  the  true 
rule,  and  renders  the  general  doctrine  of  the  case  untenable. 

Plaintiff's  character  for  chastity  was  in  issue  under  the 
general  denial.  It  was  the  object  of  defendant's  assault. 
Injury  to  it  was  the  gravamen  of  complaint.  The  action  was 
brought  for  its  vindication.  She  claims,  in  her  petition,  that 
prior  to  the  speaking  of  the  slanderous  words,  b}'  defendant, 
"  she  sustained  a  good  name  and  character  among  her  neigh- 
bors and  acquaintances  for  chastity,  moral  worth,  and  integ- 
rity," and  was  never  suspected  of  t;  unchaste  conduct,"  etc. 

Touching  this  point,  1  Greenleaf  on  Evidence,  §  55,  states 


400  CASES   ON  DAMAGES. 

the  modern  rule  to  be,  "But  it  seems  that  the  character  of 
the  part}',  in  regard  to  an}'  particular  trait,  is  not  in  issue, 
unless  it  be  the  trait  which  is  involved  in  the  matter  charged 
against  him."  Taylor,  in  his  work  on  Evidence,  vol.  i.  §  334, 
p.  365,  states  the  rule  thus :  "It  seems,  however,  that  here, 
as  in  other  cases  where  witnesses  to  character  are  admitted, 
evidence  must  be  confined  to  the  particular  trait  which  is 
attacked  in  the  alleged  libel ;  and,  as  to  this,  it  can  only 
furnish  proof  of  general  reputation,  and  must,  by  no  means, 
condescend  to  particular  acts  of  bad  conduct."  Foulkard's 
Starkie  on  Slander,  etc.,  §  714  ;  Foulkard's  Law  of  Slander, 
etc.  (4th  eel.),  539  ;  Bell  v.  Parke,  11  Irish  Com.  Law,  413- 
420;  Earl  of  Leicester  v.  Walter,  2  Camp.  251;  Turner  v. 
Foxall,  2  Cranch  C.  C.  324  ;  v.  Moor,  1  M.  &  S.  285. 

While  we  find  a  conflict  of  authority  on  this  point,  the 
modern  cases  are  founded  on  better  reason,  and  clearly  ad- 
mit the  competency  of  general  reputation  in  regard  to  the 
trait  of  character  assailed.  An  examination  of  the  cases  we 
think  would  clearly  show  that  the  apparent  conflict  in  the 
decisions  arises  principally  from  the  nature  of  the  plead- 
ings or  single  nature  of  the  accusation.  But  we  will  not  pur- 
sue this  branch  of  investigation,  because  we  think,  upon 
principle,  a  general  reputation  of  want  of  good  character  in 
the  very  particular  in  which  it  has  been  assailed,  is  competent 
evidence  in  mitigation  of  damages. 

The  plaintiff  seeks  a  compensation  for  a  loss  of  character, 
not  her  reputation  for  truth,  integrity,  sobriety,  or  industry, 
but  in  respect  to  her  reputation  for  chastity.  That  alone  is 
claimed  to  have  been  soiled.  That  is  put  in  issue.  The  law 
presumed  it  good,  and  therefore  to  her  valuable.  If  her  char- 
acter for  chastity  has  sustained  no  damage,  she  is  entitled  to 
but  little  or  no  compensation.  If  her  general  reputation  for 
chastity  was  notoriously  bad  when  the  alleged  slanderous 
words  were  spoken,  could  it  be  that  the  pecuniary  injury  sus- 
tained by  her,  from  the  wrongful  act  of  defendant,  is  as  great 
as  it  would  have  been  if  her  general  reputation  for  chastity 
had  been  untarnished? 


MAIIONEY  v.  BELFOED.  401 

That  evidence  of  general  reputation,  as  a  woman,  is  admis- 
sible in  mitigation  of  damages  is  not  disputed.  Such  was  the 
theory  of  the  court  below,  but  it  went  further,  and  ruled  that 
evidence  of  the  general  reputation  for  chastity  was  not  ad- 
missible. It  seems  to  us  the  reason  is  much  stronger  for 
allowing  evidence  affecting  her  general  character  in  respect  to 
the  trait  that  has  been  assailed.  Reputation  is  complex, — 
made  up  of  many  things.  A  woman  may  possess  many 
virtues,  consequently  a  fair,  or  even  good  general  reputation 
as  a  woman,  and  yet  be  notorious  for  some  one  vice.  If  the 
defamer  assails  all  her  virtues,  she  sustains  an  injury  ;  if  only 
her  other  vice  is  assailed,  the  injury  is  less. 

Plaintiff  asserts  in  her  complaint  that  her  standing  in  so- 
ciet}',  as  a  virtuous  woman,  has  been  assaulted  and  damaged, 
and  that  her  character  for  chastity  was,  prior  thereto,  irre- 
proachable. It  is  the  element  of  chastity  in  her  character 
which  she  claims  has  been  damaged.  Its  value  then  becomes 
the  proper  subject  of  inquiry,  —  not  her  truthfulness,  her  in- 
tegrity, her  sobriety,  her  industry,  —  but  her  chastity  alone. 
If  that  is  worthless  in  the  general  market  of  public  estima- 
tion, it  would  seem  strange,  indeed,  if  defendant  might  not 
show,  in  mitigation  of  damages,  that  it  was  generally  reputed 
of  little  value. 

The  court  erred  in  refusing  to  allow  defendant  to  prove 
plaintiff's  general  reputation  for  chastity  was  bad. 

Reversed  and  remanded. 


MAIIONEY  v.  BELFORD. 

Massachusetts,  1882.     132  Mass.  393. 

Devens,  J.  The  defendant  had  charged  the  plaintiff  with 
stealing  from  his  employer,  F.  M.  Weld.  He  had  pleaded  a 
justification,  but  at  the  trial  did  not  seek  to  establish  the 
truth  of  the  words  alleged  to  have  been  uttered.  He  did 
endeavor,  in  mitigation  of  damages,  and  to  show  that  the 

26 


402  CASES  ON  DAMAGES. 

slander  did  not  originate  with  himself,  to  offer  testimony  as 
to  the  general  reputation  as  to  the  plaintiff's  having,  duriug 
the  time  he  lived  with  Weld,  and  also  at  the  time  of  the  al- 
leged slander,  stolen  from  him.  In  such  an  action,  evidence 
may  be  given  of  the  general  reputation  of  the  plaintiff  in 
those  respects  in  which  it  has  been  assailed  by  alleged 
slander.  "Where  one  has  been  charged  with  theft,  it  may  be 
shown  that  he  was  generally  reputed  a  thief,  in  order  thus 
to  show  that  no  serious  injury  can  have  been  inflicted  on 
him.  Clark  v.  Brown,  116  Mass.  504.  But  what  the  de- 
fendant sought  to  prove  was  not  the  plaintiff's  general  repu- 
tation, which  was  the  general  character  he  had  gained  in  the 
community  by  his  course  of  life,  but  what  was  the  common 
rumor  as  to  a  particular  transaction,  namely,  his  having  stolen 
from  Weld.  The  defendant  sought  to  show,  not  that  the  plain- 
tiff's general  reputation  was  bad,  but  that  in  a  single  iustance 
he  was  generally  reputed  to  have  behaved  badly.  This  would 
have  been  to  have  proved  the  common  talk  as  to  an  individ- 
ual subject  of  scandal.  A  general  report  that  the  plaintiff 
is  guilty  of  the  particular  crime  with  which  he  was  charged 
cannot  be  received  in  evidence  in  mitigation  of  damages. 
Alderman  v.  French,  1  Pick.  1  ;  Bodwell  v.  Swan,  3  Pick. 
376  ;  Clark  v.  Munsell,  6  Met.  373  ;  Stone  v.  Varney,  7  Met. 
86  ;  Peterson  v.  Morgan,  116  Mass.  350. 

Upon  the  question  of  damages  the  court  instructed  the  jury 
"that  they  might  consider  the  injury,  if  any  shown,  to  the 
mental  feelings  of  the  plaintiff,  which  was  the  natural  and 
necessary  result  of  the  words  used,  if  in  fact  they  were  used 
as  alleged,  and  were  slanderous  ;  that  mental  suffering  was 
an  element  of  damage."  This  was  correct.  The  words,  if 
uttered  at  all,  were  uttered,  as  appears  by  the  bill  of  excep- 
tions, in  an  angry  dispute  at  an  election,  in  the  presence  of 
from  twenty  to  sixty  persons.  While  the  evidence  was  cir- 
cumstantial, and  not  direct,  that  the  plaintiff  had  been 
actually  damnified  and  had  endured  mental  suffering  in  con- 
sequence, "  the  occasion,  circumstances,  manner,  and  nature  " 
of  the   alleged  slander  was  such  as  warranted  the  plaintifl 


MAHONEY  v.  BELFORD.  403 

in  contending  that  the}'  had  occasioned  actual  injury  and 
mental  suffering,  and  in  seeking  substantial  damages  there- 
for. "  Undoubtedly,"  saj's  Chief  Justice  Bigelow  in  Mark- 
ham  v.  Russell,  12  Allen,  573,  "  the  material  element  of 
damage  in  an  action  for  slander  is  the  injuiy  done  to  charac- 
ter. But  it  is  not  the  sole  element.  A  jury  may  have  a  right 
also  to  consider  the  mental  suffering  which  may  have  been 
occasioned  to  a  part}*  by  the  publication  of  the  slanderous 
words."     See  also  Marble  v.  Chapin,  132  Mass.  225. 

Exceptions  overruled. 


CHAPTER  XL 

VALUE. 


O'HANLAN  v.  GREAT  WESTERN   RAILWAY. 

Queen's  Bench,  1865.     6  B.  &  S.  484. 

Blackburn,  J.  The  case  has  been  fully  discussed,  and  we 
are  of  opinion  that  the  rule  should  be  discharged.  The  leave 
reserved  was  to  enter  the  verdict  for  the  defendants,  if  there 
was  no  evidence  on  which  the  jury  could  reasonably  find 
more  damages  than  £22,  which  had  been  brought  into  court. 
The  goods  originally  cost  at  Leeds,  cash  down,  £20,  the  price 
in  the  invoice  being  £20  10s.  9d.  The}-  were  sent,  by  the 
defendants'  railway,  to  Neath,  where  the}'  ought  to  have  ar- 
rived earl}'  in  November,  but  they  were  lost.  It  was  agreed 
in  the  course  of  the  argument  that  the  rule  laid  down  in  Rice 
v.  Baxendale,  7  H.  &  N.  96,  applies  to  the  present  case,  viz., 
that  setting  aside  all  special  damage  the  natural  and  fair 
measure  of  damages  is  the  value  of  the  goods  at  the  place 
and  time  at  which  the}^  ought  to  have  been  delivered  to  the 
owner.  Now  the  value  of  the  goods  at  the  place  of  delivery 
must  be  the  market  price,  if  there  is  a  market  there  for  such 
goods  :  if  there  is  not,  either  from  the  smallness  of  the  place 
or  the  scarceness  of  the  particular  goods,  the  value  at  the 
place  and  time  of  delivery  would  have  to  be  ascertained  as  a 
fact  by  the  jury,  taking  into  consideration  various  matters, 
including,  in  addition  to  the  cost  price  and  expenses  of  transit, 
the  reasonable  profits  of  the  importer,  which  are  adjusted  by 
what  is  called  the  higgling  and  bargaining  of  the  market. 
Neath  was  a  place  where  there  was  no  market  for  such  goods 


GRAND  TOWER  CO.   v.   PHILLIPS.  405 

as  these,  and  the  jury  were  therefore  to  take  into  considera- 
tion those  elements.  Where  there  is  a  market  for  goods  of  a 
particular  description  and  they  are  actually  sold,  the  price  at 
which  an  importer  sells  them  is  regulated  by  his  own  average 
costs  and  charges,  together  with  his  average  profit.  For  in- 
stance, the  value  of  cotton  at  Liverpool,  upon  an  average, 
exceeds  the  value  of  cotton  in  the  Southern  States  of  North 
America  together  with  the  freight,  costs,  and  charges  attend- 
ant upon  its  transport,  otherwise  no  person  would  import  it. 
The  importer's  profit,  therefore,  is  an  element  in  the  market 
price  of  goods.  Where  there  is  no  market  from  the  nature 
of  the  thing  no  evidence  of  what  the  importer's  profit  is  can 
well  be  given,  and  the  jury  must  say  what  is  the  fair  and 
reasonable  profit  which  persons  in  the  ordinary  course  of  busi- 
ness would  be  likely  to  make.  In  the  present  case  there  was 
an  intelligent  jury,  consisting  of  men  of  business  in  Glamor- 
ganshire, who  would  know  what  were  the  profits  of  persons 
who  brought  goods  from  a  manufacturing  district  to  a  town 
in  Wales.  The  defendants  paid  into  court  a  sum  calculated 
at  something  less  than  £10  per  cent  on  the  cost  price  to 
cover  interest,  expenses,  and  everything  else-  The  question 
reserved  is,  were  the  jury  warranted  in  giving  the  plaintiff 
more?  The  jury  have  found  £25  damages.  I  think  they 
were  very  liberal  in  doing  so,  but  I  cannot  say  they  were 
wrong.1 


GRAND  TOWER  CO.  v.   PHILLIPS. 

United  States  Supreme  Court,  1874.     23  Wall.  471. 

Bradley,  J.2  In  regard  to  the  measure  of  damages,  the 
plaintiffs  were  allowed  to  show  the  prices  of  coal  during 
November  and  December,  1870,  at  all  points  on  the  Missis- 
sippi below  Cairo  even  to  New  Orleans.  And  the  court 
charged  the  jury  against  the  exceptions  of  the  defendant, 

1  Mellor  and  Sheb,  JJ.,  delivered  concurring  opinions. 

2  Part  of  the  opinion  is  omitted. 


406  CASES  ON  DAMAGES. 

that  the  true  measure  of  damages  was  the  cash  value  during 
those  months  of  the  kind  of  coal  mentioned  in  the  contract, 
at  Cairo,  or  points  below  it  on  the  Mississippi  River,  after 
deducting  the  contract  price  of  the  coal  and  the  cost  and  ex- 
pense of  transporting  it  thither,  and  making  due  allowance 
for  the  risk  and  hazard  of  such  transportation.  Now  al- 
though it  is  probable  that  the  plaintiffs  could  have  got  the 
prices  which  the  evidence  showed  were  obtained  for  coal  at 
and  below  Cairo,  had  their  coal  been  furnished  according  to 
the  agreement,  yet  the  rule  of  law  does  not  allow  so  wide  a 
range  of  inquiry,  but  regards  the  price  at  the  place  of  deliv- 
ery as  the  normal  standard  by  which  to  estimate  the  damage 
for  non-delivery.  It  is  alleged  by  the  plaintiffs  that  this  rule 
would  have  been  a  futile  one  in  their  case,  because  no  market 
for  the  purchase  of  coal  existed  at  Grand  Tower,  except  that 
of  the  defendant  itself,  which,  by  the  very  hypothesis  of  the 
action,  refused  to  deliver  coal  to  the  plaintiffs,  and  which 
had  the  whole  subject  in  its  own  control.  This  is  certainly 
a  very  forcible  answer  to  the  proposition  to  make  the  price 
of  coal  at  Grand  Tower  the  only  criterion.  It  is  apparent 
that  the  plaintiffs  would  be  obliged  to  resort  to  some  other 
source  of  supply  in  order  to  obtain  the  coal  which  the  de- 
fendant ought  to  have  furnished  them.  And  it  would  not 
be  fair,  under  the  circumstances  of  the  case,  to  confine  them 
to  the  prices  at  which  the  defendant  chose  to  sell  the  coal 
to  other  persons.  The  true  rule  would  seem  to  be,  to  allow 
the  plaintiffs  to  show  the  price  they  would  have  had  to  pay 
for  coal  in  the  quantities  which  the}'  were  entitled  to  receive 
it  under  the  contract,  at  the  nearest  available  market  where 
it  could  have  been  obtained.  The  difference  between  such 
price  and  the  price  stipulated  for  by  their  contract,  with  the 
addition  of  the  increased  expense  of  transportation  and  haul- 
ing (if  an}-),  would  be  the  true  measure  of  damages.  To 
this  is  property  to  be  added  the  claim  (if  an}-)  for  keeping 
boats  and  barges  read}'  at  Grand  Tower  for  the  receipt 
of  coal. 

But  the  prices  of  coal  at  New  Orleans,  at  Natchez,  and 


BOOM  COMPANY  v.  PATTERSON.  407 

other  places  of  distribution  and  sale,  although  they  might 
afford  a  basis  for  estimating  the  profits  which  the  plaintiffs 
might  have  made  had  the  coal  stipulated  for  been  delivered 
to  them,  cannot  be  adopted  as  a  guide  to  the  actual  damage 
sustained  so  long  as  any  more  direct  method  is  within  reach. 

Judgment  reversed. 


BOOM  COMPANY  v.   PATTERSON. 

United  States  Supreme  Court,  1878.     98  U.  S.  403. 

Field,  J.1  The  defendant  in  error,  Patterson,  was  the 
owner  in  fee  of  an  entire  island  and  parts  of  two  other  islands 
in  the  Mississippi  River  above  the  Falls  of  St.  Anthony,  in 
the  county  of  Anoka,  in  Minnesota.  These  islands  formed  a 
line  of  shore,  with  occasional  breaks,  for  nearly  a  mile  par- 
allel with  the  west  bank  of  the  river,  and  distant  from  it 
about  one-eighth  of  a  mile.  The  land  owned  by  him  amounted 
to  a  little  over  thirty-four  acres,  and  embraced  the  entire 
line  of  shore  of  the  three  islands,  with  the  exceptiou  of  about 
three  rods.  The  position  of  the  islands  specially  fitted  them, 
in  connection  with  the  west  bank  of  the  river,  to  form  a 
boom  of  extensive  dimensions,  capable  of  holding  with  safety 
from  twenty  to  thirty  millions  of  feet  of  logs.  All  that  was 
required  to  form  a  boom  a  mile  in  length  and  one-eighth  of  a 
mile  in  width  was  to  connect  the  islands  with  each  other,  and 
the  lower  end  of  the  island  farthest  down  the  river  with  the 
west  bank  ;  and  this  connection  could  be  readily  made  by 
boom  sticks  and  piers. 

The  land  on  these  islands  owned  by  the  defendant  in  error 
the  company  sought  to  condemn  for  its  uses ;  and  upon  its 
application  commissioners  were  appointed  by  the  District 
Court  to  appraise  its  value.  They  awarded  to  the  owner 
the  sum  of  $3,000.  The  company  and  the  owner  both 
appealed  from  this  award.  .  .  . 

1  Part  of  the  opinion  is  omitted. 


408  CASES   ON   DAMAGES. 

In  determining  the  value  of  land  appropriated  for  public 
purposes,  the  same  considerations  are  to  be  regarded  as  in  a 
sale  of  property  between  private  parties.  The  inquiry  in 
such  cases  must  be  what  is  the  property  worth  in  the  market, 
viewed  not  merely  with  reference  to  the  uses  to  which  it  is  at 
the  time  applied,  but  with  reference  to  the  uses  to  which  it  is 
plainly  adapted  ;  that  is  to  say,  what  is  it  worth  from  its 
availability  for  valuable  uses.  Property  is  not  to  be  deemed 
worthless  because  the  owner  allows  it  to  go  to  waste,  or  to 
be  regarded  as  valueless  because  he  is  unable  to  put  it  to  any 
use.  Others  may  be  able  to  use  it,  and  make  it  subserve  the 
necessities  or  conveniences  of  life.  Its  capability  of  being 
made  thus  available  gives  it  a  market  value  which  can  be 
readily  estimated. 

So  many  and  varied  are  the  circumstances  to  be  taken  into 
account  in  determining  the  value  of  property  condemned  for 
public  purposes,  that  it  is  perhaps  impossible  to  formulate  a 
rule  to  govern  its  appraisement  in  all  cases.  Exceptional 
circumstances  will  modify  the  most  carefully  guarded  rule ; 
but,  as  a  general  thing,  we  should  say  that  the  compensation 
to  the  owner  is  to  be  estimated  by  reference  to  the  uses  for 
which  the  property  is  suitable,  having  regard  to  the  existing 
business  or  wants  of  the  community,  or  such  as  may  be 
reasonabby  expected  in  the  immediate  future. 

The  position  of  the  three  islands  in  the  Mississippi  fitting 
them  to  form,  in  connection  with  the  west  bank  of  the  river, 
a  boom  of  immense  dimensions,  capable  of  holding  in  safety 
over  twenty  millions  of  feet  of  logs,  added  largely  to  the 
value  of  the  lands.  The  boom  company  would  greatly  pre- 
fer them  to  more  valuable  agricultural  lands,  or  to  lands 
situated  elsewhere  on  the  river ;  as,  by  utilizing  them  in  the 
manner  proposed,  they  would  save  heavy  expenditures  of 
money  in  constructing  a  boom  of  equal  capacity.  Their 
adaptability  for  boom  purposes  was  a  circumstance,  there- 
fore, which  the  owner  had  a  right  to  insist  upon  as  an  ele- 
ment in  estimating  the  value  of  his  lands. 

We  do  not  understand  that  all  persons  except  the  plaintiff 


BOOM  COMPANY  v.  PATTERSON.  409 

in  error  were  precluded  from  availing  themselves  of  these 
lands  for  the  construction  of  a  boom,  either  on  their  own 
account  or  for  general  use.   .  .  . 

The  adaptabilit}-  of  the  lands  for  the  purpose  of  a  boom 
was,  therefore,  a  proper  element  for  consideration  in  estima- 
ting the  value  of  the  lands  condemned.  The  contention  on 
the  part  of  the  plaintiff  in  error  is,  that  such  adaptability 
should  not  be  considered,  assuming  that  this  adaptability 
could  never  be  made  available  by  other  persons,  by  reason  of 
its  supposed  exclusive  privileges  ;  in  other  words,  that  by 
the  grant  of  exclusive  privileges  to  the  company  the  owner  is 
deprived  of  the  value  which  the  lands,  by  their  adaptability 
for  boom  purposes,  previously  possessed,  and  therefore 
should  not  now  receive  anything  from  the  company  on 
account  of  such  adaptability  upon  a  condemnation  of  the 
lands.  We  do  not  think  that  the  owner,  b}T  the  charter  of 
the  company,  lost  this  element  of  value  in  his  property. 

The  views  we  have  expressed  as  to  the  justness  of  consider- 
ing the  peculiar  fitness  of  the  lands  for  particular  purposes 
as  an  element  in  estimating  their  value  find  support  in  the 
several  cases  cited  by  counsel.  Thus,  In  the  Matter  of  Fur- 
man  Street,  17  Wend.  669,  where  a  lot  upon  which  the 
owner  had  his  residence  was  injured  by  cutting  clown  an 
embankment  in  opening  a  street  in  the  cit}-  of  Brooklyn,  the 
Supreme  Court  of  New  York  said  that  neither  the  purpose  to 
which  the  property  was  applied,  nor  the  intention  of  the 
owner  in  relation  to  its  future  enjoyment,  was  a  matter  of 
much  importance  in  determining  the  compensation  to  be 
made  to  him;  but  that  the  proper  inquiry  was,  "What  is 
the  value  of  the  property  for  the  most  advantageous  uses 
to  which  it  may  be  applied  ?  "  In  Goodwin~i>.  Cincinnati  & 
Whitewater  Canal  Co.,  18  Ohio  St.  160,  where  a  railroad 
company  sought  to  appropriate  the  bed  of  a  canal  for  its 
track,  the  Supreme  Court  of  Ohio  held  that  the  rule  of  valua- 
tion was  what  the  interest  of  the  canal  company  was  worth, 
not  for  canal  purposes  or  for  any  other  particular  use,  but 
generally  for  any  and  all  uses  for  which  it  might  be  suitable. 


410  CASES  ON  DAMAGES. 

And  in  Young  v.  Harrison,  17  Ga.  30,  where  land  neces- 
sary for  an  abutment  of  a  bridge  was  appropriated,  the  Su- 
preme Court  of  Georgia  held  that  its  value  was  not  to  be 
restricted  to  its  agricultural  or  productive  capacities,  but  that 
inquiry  might  be  made  as  to  all  purposes  to  which  it  could 
be  applied,  having  reference  to  existing  and  prospective 
wants  of  the  community.  Its  value  as  a  bridge  site  was, 
therefore,  allowed  in  the  estimate  of  compensation  to  be 
awarded  to  the  owner.  Judgment  affirmed. 


NATIONAL  BANK  OF  COMMERCE  v.  NEW 
BEDFORD. 

Massachusetts,  1892.     155  Mass.  313. 

Holmes,  J.1  The  petitioner  appealed  to  the  Superior  Court, 
under  the  St.  of  1890,  c.  127,  §  1,  from  the  decision  of  the 
assessors  of  New  Bedford,  refusing  to  abate  any  part  of  a  tax 
upon  its  shares  at  a  valuation  of  $120  per  share  of  the  par 
value  of  $100.  The  Superior  Court  sent  the  case  to  a  corn- 
misssioner  to  report  the  facts,  and  afterwards  heard  the  case 
on  the  report  without  other  evidence.  It  found  as  a  fact, 
from  the  report,  that  for  the  purposes  of  taxation  in  this  case 
the  fair  cash  value  of  the  shares,  at  which  they  are  required 
to  be  assessed  by  the  Pub.  Sts.  c.  13,  §  8,  was  their  market 
value  as  found  b}r  the  commissioner,  and  ruled  that  upon  the 
facts  the  assessors  had  no  right  to  assess  the  stock  upon  the 
basis  of  the  value  as  shown  by  the  capital  stock,  the  surplus 
fund,  and  the  undivided  profits,  irrespective  of  the  other  evi- 
dence in  the  case,  and  that  such  assessment  should  be  abated 
as  to  the  excess  above  the  fair  cash  value  found  to  be  the 
market  value  as  first  stated.    This  ruling  was  excepted  to.  .  .  . 

The  difference  between  the  parties  arises  from  findings  by 
the  commissioner,  that,  assuming  that  the  bank  was  to  con- 
tinue its  business,  the  fair  market  value  of  the  shares  on  May 
1,  1890,  was  $102  per  share,  but  that,  assuming  that  it  was 

1  Part  of  the  opinion  is  omitted. 


NATIONAL  BANK  OF   COMMERCE  v.  NEW  BEDFORD.     411 

to  close  its  business,  convert  its  assets  into  cash,  and  divide 
the  cash  among  the  shareholders,  the  fair  value  of  each  share- 
holder's interest  was  $126  per  share,  from  which  $G  is  to  be 
deducted  for  real  estate.  The  discrepancy  is  accounted  for 
by  a  loss  of  confidence  in  the  management,  and  the  fact  that 
for  some  years  the  bank  had  paid  low  dividends.  .  .  . 

The  thing  of  which  the  fair  cash  value  is  to  be  found  is  the 
stock  or  shares  of  the  corporation.  Value  refers  to  exchange. 
The  cash  value  of  an  article  is  the  amount  of  cash  for  which 
it  will  exchange  in  fact.  That  amount  depends  on  the  opin- 
ion of  the  public  of  possible  buyers,  or  of  that  part  of  it 
which  will  pay  the  most.  If  in  their  opinion  the  stock  is 
worth  only  $102  per  share,  —  if  that  is  all  the  stock  will  sell 
for,  —  it  is  vain  to  show  that  the  net  value  of  the  property 
of  the  corporation,  that  is  to  say,  the  opinion  of  the  public 
about  a  chief  component  element  of  the  value  of  the  stock,  if 
uncontrolled,  logically  leads  to  a  different  value  for  the  stock. 
It  has  been  recognized  judicially  that  the  value  of  the  prop- 
erty and  the  value  of  the  stock  might  differ,  for  reasons 
which  have  been  found  to  exist  in  this  case.  Commonwealth 
v.  Hamilton  Manuf.  Co.,  12  Allen,  298,  302,  303  ;  Common- 
wealth v.  Cary  Improvement  Co.,  98  Mass.  19,  22. 

Moreover,  if  there  seems  to  be  a  difference  in  the  value  of 
the  stock  when  arrived  at  in  the  two  ways  under  considera- 
tion, generally  speaking,  the  effect  of  the  value  of  the  prop- 
erty of  a  corporation  upon  the  value  of  its  stock  will  be 
estimated  more  accurately  by  the  interested  and  trained 
judgment  of  the  market  than  it  can  by  a  court.  As  a  rule, 
the  fair  cash  value  of  shares  having  a  market  is  best  ascer- 
tained by  finding  the  price  at  which  they  sell  in  the  market. 

But  in  truth  the  commissioner's  report  discloses  no  differ- 
ence in  the  value  of  the  stock,  according  as  it  is  got  at  one 
way  or  the  other.  The  difference  in  the  value  found  by  him 
depends  upon  whether  it  is  assumed  that  the  corporation  was 
to  continue  its  business  or  was  to  be  wound  up.  If  it  was  to 
continue  its  business,  $102  was  the  fair  market  value  for  a 
share ;  that  is  to  say,  $102  was  the  full  amount  of  cash  that 


412  CASES  ON  DAMAGES. 

could  be  got  or  ought  to  be  got  for  a  share  in  that  bank,  its 
property  and  prospects  being  what  they  were.  The  bank 
actually  was  to  continue  its  business,  therefore  that  was  the 
actual  fair  cash  value  of  its  shares.  What  the}'  would  have 
been  worth  in  a  different  state  of  facts,  if  the  bank  had  come 
to  a  stop,  does  not  matter.  Actual  values  are  based  upon 
existing  states  of  fact,  not  upon  hypotheses ;  and  the  actual 
value  of  shares  in  a  going  concern  depends  not  onby  upon  its 
property,  but  also  upon  its  prospects,  since  shares  both  rep- 
resent property  and  prospects. 


KOUNTZ  v.  KIRKPATRICK. 

Pennsylvania,  1872.      72  Pa.  376. 

Agnew,  J.1  On  the  7th  of  June,  1869,  Kountz  sold  to 
Kirkpatrick  &  Lyon,  two  thousand  barrels  of  crude  petro- 
leum, to  be  delivered  at  his  option,  at  anjT  time  from  the  date, 
until  the  31st  of  Decembei',  1869,  for  cash  on  delivery,  at 
thirteen  and  a  half  cents  a  gallon.  On  the  24th  of  June, 
1869,  Kirkpatrick  &  Lyon  assigned  this  contract  to  Fisher 
&  Brothers.  Kountz  failed  to  deliver  the  oil.  He  defends 
on  the  ground  that  Kirkpatrick  &  Lyon,  and  others  holding 
like  contracts  for  delivery  of  oil,  entered  into  a  combina- 
tion to  raise  the  price,  by  buying  up  large  quantities  of 
oil,  and  holding  it  till  the  expiration  of  the  }Tear  1869,  and 
thus  to  compel  the  sellers  of  oil  on  option  contracts,  to  pay  a 
heavy  difference  for  non-delivery.  .   .  . 

In  the  sale  of  chattels,  the  general  rule  is,  that  the  measure 
is  the  difference  between  the  contract  price  and  the  market 
value  of  the  article  at  the  time  and  place  of  delivery  under 
the  contract.  It  is  unnecessary  to  cite  authority  for  this  well- 
established  rule,  but  as  this  case  raises  a  novel  and  extraor- 
dinary question  between  the  true  market  value  of  the  article, 
and  a  stimulated  market  price,  created  by  artificial  and  fraudu- 
lent practices,  it  is  necessary  to  fix  the  true  meaning  of  the 

1  Part  of  the  opinion  is  omitted. 


KOUNTZ   v.   KIRKPATRICK.  413 

rule  itself,  before  we  ean  approach  the  real  question.  Ordi- 
narily, when  an  article  of  sale  is  in  the  market,  and  has  a 
market  value,  there  is  no  difference  between  its  value  and  the 
market  price,  and  the  law  adopts  the  latter  as  the  proper  evi- 
dence of  the  value.  This  is  not,  however,  because  value  and 
price  are  really  convertible  terms,  but  only  because  they  are 
ordinarily  so  in  a  fair  market.  The  primary  meaning  of 
value  is  worth,  and  this  worth  is  made  up  of  the  useful  or 
estimable  qualities  of  the  thing.  See  Webster's  and  Worces- 
ter's Dictionaries.  Price,  on  the  other  hand,  is  the  sum  in 
money  or  other  equivalent  set  upon  an  article  by  a  seller, 
which  he  demands  for  it :  Id.  Ibid.  Value  and  price  are, 
therefore,  not  synonymes,  or  the  necessary  equivalents  of 
each  other,  though  commonly  market  value  and  market  price 
are  legal  equivalents.  When  we  examine  the  authorities,  we 
find  also  that  the  most  accurate  writers  use  the  phrase  "  market 
value,"  not  "  market  price."  Mr.  Sedgwick,  in  his  standard 
work  on  the  measure  of  damages  (4th  ed.),  p.  260,  says: 
"  Where  contracts  for  the  value  of  chattels  are  broken  by  the 
vendor's  failing  to  deliver  property  according  to  the  terms  of 
the  bargain,  it  seems  to  be  well  settled,  as  a  general  rule,  both 
in  England  and  the  United  States,  that  the  measure  of  dam- 
ages is  the  difference  between  the  contract  price  and  the 
market  value  of  the  article  at  the  time  it  should  be  delivered 
upon  the  ground  ;  that  this  is  the  plaintiff's  real  loss,  and 
that  with  this  sum,  he  can  go  into  the  market  and  supply  him- 
self with  the  same  article  from  another  vendor."  Judge  Rogers 
uses  the  same  term  in  Smethurst  v.  Woolston,  5  W.  &  S.  109  : 
"  The  value  of  the  article  at  or  about  the  time  it  is  to  be  de- 
livered, is  the  measure  of  damages  in  a  suit  by  the  vendee 
against  the  vendor  for  a  breach  of  the  contract."  So  said  C.J. 
Tilghman,  in  Girard  v.  Taggart,  5  S.  &  R.  32.  Judge  Ser- 
geant, also,  in  O'Connor  v.  Forster,  10  Watts,  422,  and  in 
Mott  v.  Dan  forth,  6  Id.  308.  But  as  even  accurate  writers 
do  not  alwa}'s  use  words  in  a  precise  sense,  it  would  be  un- 
satisfactory to  rely  on  the  common  use  of  a  word  only,  in 
making  a  nice  distinction  between  terms.     It  is  therefore 


414  CASES  ON  DAMAGES. 

proper  to  inquire  into  the  true  legal  idea  of  damages  in  order 
to  determine  the  proper  definition  of  the  term  "  value."  Except 
in  those  cases  where  oppression,  fraud,  malice  or  negligence 
enter  into  the  question,  "  the  declared  object  (says  Mr.  Sedg- 
wick, in  his  work  on  Damages)  is  to  give  compensation  to  the 
party  injured  for  the  actual  loss  sustained,"  4th  ed.,  pp.  28, 
29  ;  also,  pp.  36,  37.  Among  the  man}'  authorities  he  gives, 
he  quotes  the  language  of  C.  J.  Shippen,  in  Bussy  v.  Donald- 
son, 4  Dallas,  206  :  "  As  to  the  assessment  of  damages  (said 
he),  it  is  a  rational  and  legal  principle,  that  the  compensation 
should  be  equivalent  to  the  injury."  "The  rule,"  said  C.J. 
Gibson,  "  is  to  give  actual  compensation,  by  graduating  the 
amount  of  the  damages  exactly  to  the  extent  of  the  loss." 
"  The  measure  is  the  actual,  not  the  speculative  loss  : "  For- 
syth v.  Palmer,  2  Harris,  97.  Thus,  compensation  being  the 
true  purpose  of  the  law,  it  is  obvious  that  the  means  em- 
ployed, in  other  words,  the  evidence  to  ascertain  compensa- 
tion, must  be  such  as  truly  reaches  this  end. 

It  is  equally  obvious,  when  we  consider  its  true  nature, 
that  as  evidence,  the  market  price  of  an  article  is  only  a 
means  of  arriving  at  compensation  ;  it  is  not  itself  the  value 
of  the  article,  but  is  the  evidence  of  value.  The  law  adopts 
it  as  a  natural  inference  of  fact,  but  not  as  a  conclusive  legal 
presumption.  It  stands  as  a  criterion  of  value,  because  it  is 
a  common  test  of  the  ability  to  purchase  the  thing.  But  to 
assert  that  the  price  asked  in  the  market  for  an  article  is  the 
true  and  only  test  of  value,  is  to  abandon  the  proper  object  of 
damages,  viz.,  compensation,  in  all  those  cases  where  the 
market  evidently  does  not  afford  the  true  measure  of  value. 
This  thought  is  well  expressed  by  Lewis,  C.J.,  in  Bank  of 
Montgomery  v.  Reese,  2  Casey,  146.  "The  paramount  rule 
in  assessing  damages  (he  says),  is  that  every  person  unjustly 
deprived  of  his  rights  should  at  least  be  fully  compensated 
for  the  injury  he  sustained.  Where  articles  have  a  determi- 
nate value  and  an  unlimited  production,  the  general  rule  is  to 
give  their  value  at  the  time  the  owner  was  deprived  of  them, 
with  interest  to  the  time  of  verdict.     This  rule  has  been 


KOUNTZ  v.  KIRKPATRIC&  415 

adopted  because  of  its  convenience,  and  because  it  in  general 
answers  the  object  of  the  law,  which  is  to  compensate  for  the 
injurj-.  In  relation  to  such  articles,  the  supply  usually  keeps 
pace  with  the  demand,  and  the  fluctuations  in  the  value  are 
so  inconsiderable  as  to  justify  the  courts  in  disregarding  them 
for  the  sake  of  convenience  and  uniformity.  In  these  cases, 
the  reason  why  the  value  at  the  time  of  conversion,  with  in- 
terest, generally  reaches  the  justice  of  the  case,  is  that  when 
the  owner  is  deprived  of  the  articles,  he  may  purchase  others 
at  that  price.  But  it  is  manifest  that  this  would  not  remu- 
nerate him  where  the  article  could  not  be  obtained  elsewhere, 
or  where  from  restrictions  on  its  production,  or  other  causes, 
its  price  is  necessarily  subject  to  considerable  fluctuation." 
This  shows  that  the  market  price  is  not  an  invariable  stan- 
dard, and  that  the  converse  of  the  case  then  before  Judge 
Lewis  is  equally  true  —  that  is  to  say  —  when  the  market 
price  is  unnaturally  inflated  by  unlawful  and  fraudulent  prac- 
tices, it  cannot  be  the  true  means  of  ascertaining  what  is  just 
compensation.  It  is  as  unjust  to  the  seller  to  give  the  pur- 
chaser more  than  just  compensation,  as  it  is  to  the  purchaser 
to  give  him  less.  Right  upon  this  point,  we  have  the  lan- 
guage of  this  court  in  the  case  of  a  refusal  by  a  purchaser  to 
accept :  Andrews  v.  Hoover,  8  Watts,  240.  It  is  said  :  "  The 
juiy  is  bound  by  a  measure  of  damages  where  there  is  one, 
but  not  alwa}rs  by  a  particular  means  for  its  ascertainment. 
Now  the  measure  in  a  case  like  the  present,  is  the  difference 
between  the  price  contracted  to  be  paid  and  the  value  of  the 
thing  when  it  ought  to  have  been  accepted  ;  and  though  a  re- 
sale is  a  convenient  and  often  satisfactory  means,  it  does  not 
follow  that  it  is,  nor  was  it  said  in  Girard  v.  Taggart  to  be 
the  only  one.  On  the  contrary,  the  propriety  of  the  direction 
there,  that  the  jury  were  not  bound  by  it,  if  they  could  find 
another  more  in  accordance  with  the  justice  of  the  case, 
seems  to  have  been  admitted  ;  the  very  thing  complained  of 
here."  Judge  Strong  took  the  same  view  in  Trout  v.  Ken- 
nedy, 11  Wright,  393.  That  was  the  case  of  a  trespasser, 
and  the  jury  had  been  told  that  the  plaintiff  was  entitled  to 


416  CASES  ON  DAMAGES. 

the  just  and  full  value  of  the  property,  and  if  at  the  time  of 
the  trespass  the  market  was  depressed,  too  much  importance 
was  not  to  be  given  to  that  fact.  "  If  (says  Judge  Strong) 
at  any  particular  time,  there  be  no  market  demand  for  an 
article,  it  is  not  of  course  on  that  account  of  no  value.  What 
a  thing  will  bring  in  the  market  at  a  given  time,  is  perhaps 
the  measure  of  its  value  then  ;  but  it  is  not  the  only  one." 
These  cases  plainly  teach  that  value  and  market  price  are  not 
always  convertible  terms ;  and  certainty  there  can  be  no 
difference  in  justice  or  law,  in  an  unnatural  depression  and 
an  unnatural  exaltation  in  the  market  price,  —  neither  is  the 
true  and  only  measure  of  value. 

These  general  principles  in  the  doctrine  of  damages  and 
authorities,  prove  that  an  inflated  speculative  market  price, 
not  the  result  of  natural  causes,  but  of  artificial  means  to 
stimulate  prices  by  unlawful  combinations  for  the  purposes  of 
gain,  cannot  be  a  legitimate  means  of  estimating  just  compen- 
sation. It  gives  to  the  purchaser  more  than  he  ought  to  have, 
and  compels  the  seller  to  pay  more  than  he  ought  to  give,  and 
it  is  therefore  not  a  just  criterion.  There  is  a  case  in  our 
own  State,  bearing  strongly  on  this  point :  Blydenburgh  et  al. 
v.  Welsh  et  al.,  Baldwin's  Rep.  331.  Judge  Baldwin  had 
charged  the  jury  in  these  words  :  "  If  you  are  satisfied  from 
the  evidence,  that  there  was  on  that  day  a  fixed  price  in  the 
market,  you  must  be  governed  by  it ;  if  the  evidence  is  doubt- 
ful as  to  the  price,  and  witnesses  vary  in  their  statements, 
you  must  adopt  that  which  you  think  best  accords  with  the 
proof  in  the  case."  In  granting  a  new  trial,  Judge  Hopkin- 
son  said  :  "  It  is  the  price  —  the  market  price  —  of  the  article 
that  is  to  furnish  the  measure  of  damages.  Now  what  is  the 
price  of  a  thing,  particularly  the  market  price?  We  consider 
it  to  be  the  value,  the  rate  at  which  the  thing  is  sold.  To 
make  a  market,  there  must  be  buying  and  selling,  purchase 
and  sale.  If  the  owner  of  an  article  holds  it  at  a  price  which 
nobody  will  give  for  it,  can  that  be  said  to  be  its  market 
value?  Men  sometimes  put  fantastical  prices  upon  their 
property.     For  reasons  personal  and  peculiar,  they  may  rate 


KOUNTZ  v.  KIRKPATRICK  417 

it  much  above  what  an}-  one  would  give  for  it.  Ts  that  the 
value?  Further,  the  holders  of  an  article,  flour,  for  instance, 
under  a  false  rumor,  which,  if  true,  would  augment  its  value, 
may  suspend  their  sales,  or  put  a  price  upon  it,  not  according 
to  its  value  in  the  actual  state  of  the  market,  but  according 
to  what  in  their  opinion  will  be  its  market  price  or  value,  pro- 
vided the  rumor  shall  prove  to  be  true.  In  such  a  case,  it  is 
clear  that  the  asking  price  is  not  the  worth  of  the  thing  on 
the  given  day,  but  what  it  is  supposed  it  will  be  worth  at  a 
future  day,  if  the  contingency  shall  happen  which  is  to  give  it 
this  additional  value.  To  take  such  a  price  as  the  rule  of 
damages,  is  to  make  the  defendant  pay  what  in  truth  never 
was  the  value  of  the  article,  and  to  give  to  the  plaintiff  a 
profit  by  a  breach  of  the  contract,  which  he  never  would  have 
made  by  its  performance." 

The  case  of  suspended  sales  upon  a  rumor  tending  to  en- 
hance the  price,  put  by  Judge  Hopkinson,  bears  no  com- 
parison to  the  case  alleged  here,  where  a  combination  is 
intentionally  formed  to  buy  up  oil,  hold  it  till  the  year  is  out, 
and  thus  force  the  market  price  up  purposely  to  affect  exist- 
ing contracts,  and  compel  the  sellers  to  pay  heavy  damages 
for  non-fulfilment  of  their  bargains.  In  the  same  case,  Judge 
Hopkinson  further  said  :  "  We  did  not  intend  that  they  (the 
jury)  should  go  out  of  the  limits  of  the  market  price,  nor  to 
take  as  that  price  whatever  the  holders  of  the  coffee  might 
choose  to  ask  for  it ;  substituting  a  fictitious,  unreal  value, 
which  nobody  would  give,  for  that  at  which  the  article  might 
be  bought  or  sold."  "  In  determining,"  says  an  eminent  writer 
on  contracts,  "  what  is  the  market  value  of  property  at  any 
particular  time,  the  jury  may  sometimes  take  a  wide  range ; 
for  this  is  not  always  ascertainable  b}7  precise  facts,  but  must 
sometimes  rest  on  opinion;  and  it  would  seem  that  neither 
part}'  ought  to  gain  or  lose  by  a  mere  fancj-  price,  or  an  in- 
flated and  accidental  value,  suddenly  put  in  force  by  some 
speculative  movement,  and  as  suddenly  passing  awa}\  The 
question  of  damages  b}'  a  market  value  is  peculiarly  one  for  a 
jury."     Parsons  on  Contracts,  vol.  ii.  p.  482,  ed.  1857.    In 

27 


418  CASES  ON  DAMAGES. 

Smith  v.  Griffith,  3  Hill,  337,  338,  C.J.  Nelson  said  :  "  I  admit 
that  a  mere  speculating  price  of  the  article,  got  up  by  the  con- 
trivance of  a  few  interested  dealers,  is  not  the  true  test.  The 
law,  in  regulating  the  measure  of  damages,  contemplates  a 
range  of  the  entire  market,  and  the  average  of  prices,  as  thus 
found,  running  through  a  reasonable  period  of  time.  Neither 
a  sudden  and  transient  inflation,  nor  a  depression  of  prices, 
should  control  the  question.  These  are  often  accidental,  pro- 
moted by  interested  and  illegitimate  combinations,  for  tem- 
porary, special,  and  selfish  objects,  independent  of  the  objects 
of  lawful  commerce  ;  a  forced  and  violent  perversion  of  the 
laws  of  trade,  not  within  the  contemplation  of  the  regular 
dealer,  and  not  deserving  to  be  regarded  as  a  proper  basis 
upon  which  to  determine  the  value,  when  the  fact  becomes 
material  in  the  administration  of  justice."  I  may  close  these 
sayings  of  eminent  jurists  with  the  language  of  Chief  Justice 
Gibson,  upon  stock-jobbing  contracts  (Wilson  v.  Davis,  5  W. 
&  S.  523)  :  "  To  have  stipulated,"  says  he,  "  for  a  right  to  re- 
cruit on  separate  account,  would  have  given  to  the  agreement 
an  appearance  of  trick,  like  those  of  stock-jobbing  contracts, 
to  deliver  a  given  number  of  shares  at  a  certain  day,  in  which 
the  seller's  performance  has  been  forestalled  by  what  is  called 
cornering ;  in  other  words,  buying  up  all  the  floating  shares 
in  the  market.  These  contracts,  like  other  stock-jobbing 
transactions,  in  which  parties  deal  upon  honor,  are  seldom 
subjected  to  the  test  of  judicial  experiment,  but  they  would 
necessarily  be  declared  fraudulent." 

Without  adding  more,  I  think  it  is  conclusively  shown  that 
what  is  called  the  market  price,  or  the  quotations  of  the  arti- 
cles for  a  given  day,  is  not  always  the  only  evidence  of  actual 
value,  but  that  the  true  value  may  be  drawn  from  other 
sources,  when  it  is  shown  that  the  price  for  the  particular 
day  had  been  unnaturally  inflated.  It  remains  only  to  ascer- 
tain whether  the  defendant  gave  such  evidence  as  to  require 
the  court  to  submit  to  the  jury  to  ascertain  and  determine  the 
fair  market  value  of  crude  oil  per  gallon,  on  the  31st  of 
December,   1869,   as  demanded    by  the  defendant  in  hia 


KOUNTZ  v.  KIRKPATRICK.  419 

fifteenth  point.  There  was  evidence  from  which  the  jury 
might  have  adduced  the  following  facts,  viz. :  That  in  the 
month  of  October,  1869,  a  number  of  persons  of  large  capital, 
and  among  them  Kirkpatrick  vi  Lyon,  combined  together  to 
purchase  crude  oil,  and  hold  it  until  the  close  of  the  year 
1869  ;  that  these  persons  were  the  holders,  as  purchasers,  of 
a  large  number  of  sellers'  option  contracts,  similar  to  the  one 
in  suit;  that  they  bought  oil  largely,  aud  determined  to  hold 
it  from  the  market  until  the  year  1870  before  selling ;  that 
oil,  in  consequence  of  this  combination,  ran  up  in  price,  in 
the  face  of  an  increased  supply,  until  the  31st  da}'  of  Decem- 
ber, 1869,  reaching  the  price  of  seventeen  to  eighteen  cents 
per  gallon,  and  then  suddenly  dropped  as  soon  as  the  year 
closed.  Major  Frew,  one  of  the  number,  says  :  It  was  our  pur- 
pose to  take  the  oil,  pay  for  it,  and  keep  it  until  Jan.  1,  1870, 
otherwise  we  would  have  been  heading  the  market  on  ourselves. 
Mr.  Long  says  that  on  the  3d  of  January,  1870,  he  sold  oil  to 
Fisher  &  Brother  (the  plaintiffs)  at  thirteen  cents  a  gallon, 
and  could  find  no  other  purchaser  at  that  price.  Several 
witnesses,  dealers  in  oil,  testify  that  they  knew  of  no  natural 
cause  to  create  such  a  rise  in  price,  or  to  make  the  difference 
in  price  from  December  to  January.  It  was  testified,  on  the 
contrary,  that  the  winter  production  of  oil  was  greater  in 
December,  1869,  than  in  former  years  by  several  thousand 
barrels  per  day,  a  fact  tending  to  reduce  the  price,  when  not 
sustained  by  other  means.  Mr.  Benn  says  he  knew  no  cause 
for  the  sudden  fall  in  price  on  the  1st  January,  1870.  ex- 
cept that  the  so-called  combination  ceased  to  buy  at  the  last 
of  December,  1869. 

It  was,  therefore,  a  fair  question  for  the  jury  to  determine 
whether  the  price  which  was  demanded  for  oil  on  the  last 
day  of  December,  1869,  was  not  a  fictitious,  unnatural,  in- 
flated, and  temporary  price,  the  result  of  a  combination  to 
"bull  the  market,"  as  it  is  termed,  and  to  compel  sellers  to 
pay  a  false  and  swollen  price  in  order  to  fulfil  their  contracts. 
If  so,  then  such  price  was  not  a  fair  test  of  the  value  of  the 
oil,  and  the  jury  would  be  at  liberty  to  determine,  from  the 


420  CASES  ON  DAMAGES. 

prices  before  and  after  the  day,  and  from  other  sources  of 
information,  the  actual  market  value  of  the  oil  on  the  31st  of 
December,  1869.  Any  other  cause  would  be  unjust  and  in- 
jurious to  fair  dealers,  and  would  enable  gamblers  in  the  arti- 
cle to  avail  themselves  of  their  own  wrong,  and  to  wrest  from 
honest  dealers  the  fruits  of  their  business.  It  cannot  be  pos- 
sible that  a  ' '  corner "  such  as  took  place  a  few  weeks  since 
in  the  market  for  the  stock  of  a  Western  railroad  company, 
where  shares,  worth  in  the  ordinary  market  about  sixty  dol- 
lars each,  were  by  the  secret  operations  of  two  or  three  large 
capitalists,  forced  up  in  a  few  days  to  a  price  over  two  hun- 
dred dollars  a  share,  can  be  a  lawful  measure  of  damages. 
Men  are  not  to  be  stripped  of  their  estates  by  such  cruel  and 
wrongful  practices ;  and  courts  of  justice  cannot  so  wholly 
ignore  justice  as  to  assume  such  a  false  standard  of  com- 
pensation. 

Judgment  reversed. 

Sharswood  and  Williams,  JJ.,  dissented. 


FRANCE  v.   GAUDET. 

Queen's  Bench,  1871.     L.  R.  6  Q.  B.  199. 

Mellor,  J.  In  this  case  the  plaintiff,  who  is  a  wine  mer- 
chant, had  for  a  customer  a  Captain  Hodder,  whose  ship  was, 
on  the  13th  of  August  last,  in  the  London  Docks,  and  about 
to  sail.  A  few  days  before,  the  plaintiff  had  obtained  sam- 
ples from  a  person  named  Restall,  a  wine  broker,  who  had  100 
cases  of  champagne  for  sale,  then  lying  at  the  defendants' 
wharf,  for  which  the  price  was  14s.  per  dozen.  The  plaintiff 
had  handed  the  samples  to  Hodder,  who,  on  the  13th  of 
August,  agreed  to  purchase  the  100  cases  from  the  plaintiff  at 
24s.  per  dozen,  to  be  delivered  next  day,  whereupon  the 
plaintiff  concluded  the  bargain  with  Restall,  and  obtained 
from  him  the  freight  note  and  the  warrants  for  delivery  of  the 
wine,  in  order  that  he  might  obtain  the  same,  so  as  to  enable 


PRANCE  v.   GAUDET.  421 

him  to  perform  his  contract  with  Captain  Hodder,  who  was 
then  about  to  sail,  and  did  actually  sail  on  the  17th  of  August. 
On  the  14th  of  August  the  plaintiff  sent  to  the  defendant's 
wharf  and  required  the  delivery  of  the  wine,  but  the  defend- 
ants refused  to  deliver  the  wine,  on  the  ground  that  a  stop 
had  been  previously  put  upon  the  delivery.  The  plaintiff  being 
unable  to  obtain  delivery  of  the  wine,  Captain  Hodder  sailed 
without  it.  It  was  admitted  that  champagne  of  that  brand 
and  quality  was  not  to  be  obtained  in  the  market,  so  as  to 
enable  the  plaintiff  to  substitute  100  other  cases  of  champagne 
for  the  100  cases  which  he  had  purchased  and  contracted  to 
sell  to  Captain  Hodder.  The  wine  had  been  delivered  to 
the  plaintiff  after  action  brought,  under  a  judge's  order. 

Upon  this  state  of  facts,  the  counsel  for  the  defendants, 
at  the  trial  before  my  brother  Lush,  contended  that  as  the 
defendants  had  no  notice  of  the  contract  between  the  plaintiff 
and  Hodder,  they  were  not  liable  in  trover  for  more  than 
the  ordinary  value  of  such  wine  at  the  time  of  the  conversion  ; 
and  that,  inasmuch  as  the  defendants  had  paid  into  court  a 
sum  which  covered  4s.  per  dozen  for  reasonable  profit,  they 
were  entitled  to  have  the  verdict  entered  for  them. 

My  brother  Lush  reserved  the  question  for  the  considera- 
tion of  the  Court,  directing  a  verdict  for  the  plaintiff  for  £30, 
being  the  difference  between  the  sum  paid  into  court  and  the 
profit  at  which  the  champagne  had  been  contracted  to  be 
sold  by  the  plaintiff  to  Plodder ;  with  leave  to  move  to  enter 
a  verdict  for  the  defendants.  He  was  not  requested  to  leave 
any  question  to  the  jury ;  and  it  must  be  taken'  that  if  the 
plaintiff  can  recover  any  sum  bej'ond  that  paid  into  court,  the 
amount  is  to  stand  at  £30,  and  it  is  also  to  be  assumed  that, 
if  to  entitle  the  plaintiff  to  recover  that  amount,  notice  of  the 
contract  between  himself  and  Hodder  ought  to  have  been 
given  to  the  defendants,  then  the  sum  paid  into  court  was 
sufficient  to  satisfy  the  damages  occasioned  by  the  defendants' 
conversion  of  the  wine. 

Under  ordinar}T  circumstances  the  direction  to  the  jury 
would  simply  be  to  ascertain  the  value  of  the  goods  at  the 


422  CASES   ON  DAMAGES. 

time  of  the  conversion,  and  in  case  the  plaintiff  could,  by 
going  into  the  market,  have  purchased  other  goods  of  the 
like  quality  and  description,  the  price  at  which  that  would 
have  been  clone  would  be  the  true  measure  of  damages. 

It  was,  however,  admitted  on  the  trial,  that  in  the  present 
case  that  course  could  not  have  been  pursued,  inasmuch  as 
champagne  of  the  like  quality  and  description  could  not  have 
been  purchased  in  the  market,  so  as  to  enable  the  plaintiff  to 
fulfil  his  contract  with  Captain  Hodder. 

We  are  of  opinion  that  the  true  rule  is  to  ascertain  the 
actual  value  of  the  goods  at  the  time  of  the  conversion,  and 
that  a  bona  fide  sale  having  been  made  to  a  solvent  customer 
at  24s.  per  dozen,  which  would  have  been  realized  had  the 
plaintiff  been  able  to  obtain  delivery  from  the  defendants, 
the  champagne  had,  owing  to  these  circumstances,  acquired 
an  actual  value  of  24,<?.  per  dozen  ;  and  we  think  that,  in  the 
present  case,  that  ought  to  be  the  measm*e  applied,  and  that 
a  jury  would  not  only  have  been  justified  in  assuming  that 
to  be  the  value,  but  ought,  where  the  transaction  was  bona 
fide,  to  have  taken  that  as  the  measure  of  damages,  and  under 
the  reservation  at  the  trial,  we  think  that  we  ought  to  say  that 
such  is  the  proper  measure  of  damages. 

It  was,  however,  objected  at  the  trial,  in  analogy  to  the 
cases  of  special  damage  arising  out  of  the  breach  of  contract, 
that  notice  of  the  special  circumstances  ought  to  have  been 
given  to  the  defendants,  in  order  to  entitle  the  plaintiff  to 
recover  anything  be3'ond  the  ordinary  value  of  the  goods 
converted ;  and  Sedgwick  on  Damages  was  referred  to  and 
various  passages  were  cited,  the  substance  of  which  is  to  be 
found  at  page  559,  4th  edition.  The  learned  author  says : 
"It  appears  to  me  that,  in  principle,  unless  the  plaintiff  has 
been  deprived  of  some  particular  use  of  his  property,  of  which 
the  other  party  was  apprised,  and  which  he  maj-  be  thus  said 
to  have  directly  prevented,  the  rights  of  the  parties  are  fixed 
at  the  time  of  the  illegal  act,  be  it  refusal  to  deliver  or  actual 
conversion,  and  that  the  damages  should  be  estimated  as  at 
that  time." 


FRANCE  v.  GAUDET.  423 

We  are  not  prepared  to  say  that  there  is  any  analogy  be- 
tween the  case  of  contract  alluded  to,  in  which  two  parties 
making  a  contract  for  the  sale  and  delivery  of  a  specific  chat- 
tel, the  vendee  gives  notice  to  the  vendor  of  the  precise  object 
of  the  purchase,  and  a  case  like  the  present.  In  the  case  of 
contract  special  damages,  reasonably  resulting  from  the  breach 
of  it,  may  be  considered  within  the  contemplation  of  the  parties. 
In  case  of  trover,  it  is  not  in  general  special  damage  which 
can  be  recovered,  but  a  special  value  attached  by  special 
circumstances  to  the  article  converted  ;  the  conversion  con- 
sists in  withholding  from  another  property  to  the  possession  of 
which  he  is  immediately  entitled,  and  the  circumstances  which 
affix  the  value  are  then  determined ;  no  notice  to  the  wrong- 
doer could  then  affect  the  value,  although  it  might  affect  his 
conduct ;  but  upon  what  principle  is  a  notice  necessary  to  a 
man  who  ex  hypothesi  is  a  wrong-doer?  In  such  a  case  as 
the  present,  the  actual  value  is  fixed  by  circumstances  at  the 
time  of  the  demand,  and  no  notice  of  the  special  circum- 
stances could  then  affect  the  actual  value  of  the  goods  with- 
held from  their  rightful  owner,  who  thereby  sustains  "  an 
actual  present  loss,"  which  appears  to  us  to  be  a  convertible 
term  with  "actual  value." 

It  is  not  necessary  to  determine  whether  notice  is  or  is  not 
necessary  in  trover,  in  order  to  enable  a  plaintiff  to  recover 
special  damage  which  cannot  form  part  of  the  actual  present 
value  of  the  things  converted,  as  in  case  of  the  withholding 
of  the  tools  of  a  man's  trade,  in  which  the  damage  arising 
from  the  deprivation  of  his  property  is  not,  and  apparently 
cannot  be  fixed  at  the  time  of  the  conversion  of  the  tools. 
In  that  case,  however,  we  are  inclined  to  think  that  either  ex- 
press notice  must  be  given,  or  arise  out  of  the  circumstances 
of  the  case.  This  point  was  not  determined  in  Bodley  v.  Re}-- 
nolds,  8  Q.  B.  779,  approved  in  Wood  v.  Bell,  5  E.  &  B.  772 ; 
25  L.  J.  (Q.  B.)  148.  But  we  think  that  there  must  have 
been  evidence  of  knowledge  on  the  part  of  the  defendant  that 
in  the  nature  of  things  inconvenience  be}-ond  the  loss  of  the 
tools  must  have  been  occasioned  to  the  plaintiff. 

The  rule  will  be  discharged.  Rule  discharged. 


42-i  CASES  ON  DAMAGES. 


STICKNEY  v.   ALLEN. 

Massachusetts,  1858.     10  Gray,  352. 

Action  of  tort  for  converting  to  the  defendant's  use  stereo- 
type plates,  the  property  of  the  plaintiffs.1 

Metcalf,  J.  The  proper  rule  of  damages  was  prescribed 
by  the  judge,  namely,  the  fair  value  of  the  plates  to  the  plain- 
tiffs. And  he  allowed  the  jurj'  to  take  into  consideration,  in 
estimating  that  value,  the  cost  of  replacing  the  plates.  The 
defendant  insists  that  the  market  value  was  the  true  rule  of 
damages.  And  this  is  doubtless  the  general  rule  in  trover. 
But  this  rule  presupposes  the  conversion  of  marketable  prop- 
erty. Whereas,  in  this  case,  it  was  admitted  by  the  defend- 
ant's counsel,  in  argument,  that  the  plates  in  question  were 
made  for  the  printing  of  labels  or  advertisements  in  the  plain- 
tiffs' names,  which  were  to  be  used  by  them  only,  in  their 
special  business  ;  and  the  exceptions  show  that  it  was  in  evi- 
dence that  they  were  of  very  trifling  value,  except  to  the 
plaintiffs.  Such  things  cannot  with  an}'  propriety  be  said  to 
have  a  market  value.  And  the  actual  value  to  him  who  owns 
and  uses  them  is  the  just  rule  of  damages  in  an  action 
against  him  who  converts  them  to  his  own  use.  Suydam  v. 
Jenkins,  3  Sandf.  621,  622. 

There  is  no  ground  for  the  defendant's  objection,  that 
damage  to  the  amount  of  the  value  of  the  plates  to  the  plain- 
tiffs alone  was  special  damage,  and  therefore  not  recoverable, 
because  not  alleged  in  their  declaration.  Special  damage,  in 
trover,  is  that  which  the  plaintiff  sustains  beyond  the  mere 
loss  of  his  propert}*  by  its  conversion.  Davis  v.  Oswell,  7 
Car.  &  P.  804  ;  Bodley  v.  Reynolds,  8  Ad.  &  El.  N.  R.  779. 
If  the  plaintiffs,  in  this  case,  had  offered  evidence  that  b}*  the 
loss  of  their  plates  their  business  was  obstructed,  it  would  not 
have  been  admissible,  under  their  declaration,  for  the  pur- 
pose of  proving  damage  beyond  the  value  of  the  plates. 
Mayne  on  Damages,  212. 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted 


HARRIS  v.  PANAMA  RAILROAD.  425 

HARRIS   v.  PANAMA  RAILROAD. 
New  York,  1874.     58  N.  Y.  660. 

This  action  was  brought  to  recover  damages  for  the  killing 
of  a  race-horse  while  being  transported  upon  defendant's 
road,  across  the  Isthmus  of  Panama,  through  the  alleged 
negligence  of  defendant. 

Upon  the  trial  evidence  was  given  tending  to  show  that, 
while  the  horse  could  have  been  sold  for  some  price,  there 
was  no  market  price,  properly  speaking,  for  such  a  horse  on 
the  Isthmus.  Plaintiff  offered,  and  was  allowed,  to  prove 
that  the  route  over  the  Isthmus  was  part  of  a  usual  route  to 
California,  which  was  the  destination  of  the  horse  in  question, 
and  also  to  prove  the  market  value  at  San  Francisco.  The 
court  instructed  the  jury,  that  they  were  to  use  the  proof  sub- 
mitted to  enable  them  to  answer  the  question  of  the  value  at 
the  time  and  place  of  the  injury.  Held,  no  error ;  that  where 
there  is  a  market  price  or  value  at  the  time  and  place  that  is 
the  most  suitable  means  of  ascertaining  value,  but  not  the 
only  one  (Muller  v.  Eno,  14  N.  Y.  597,  607,  608  ;  Parks  v. 
Morris  Axe  and  Tool  Co.,  54  Id.  593)  ;  but  that  this  species 
of  evidence  could  only  be  completely  reliable  where  it  appears 
that  similar  articles  have  been  bought  and  sold,  in  the  way  of 
trade,  in  sufficient  quantity  or  often  enough  to  show  a  market 
value  ;  and  in  the  absence  of  such  proof,  proof  of  such  valu^ 
at  some  other  place  was  admissible ;  in  which  case  the  place 
of  destination  was  the  most  natural  resort  to  supply  the 
needed  proof;  it  being  resorted  to,  however,  011I3-  to  enable 
the  jury  to  answer  the  inquiry  as  to  the  value  at  the  place  of 
the  actual  loss,  great  deduction  being  made  for  the  risk  and 
expense  of  further  transportations.1 

Judgment  affirmed. 

Part  of  the  case  is  omitted. 


426  CASES  ON  DAMAGES. 

BRADLEY  v.  HOOKER. 

Massachusetts,  1900.     175  Mass.  142. 

Tort,  for  the  conversion  of  one  mahogany-frame  lounge, 
covered  with  plush,  old  gold  in  color. 

At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  there 
was  evidence  tending  to  prove  a  conversion  on  or  about  July 
2,  1897,  and  for  the  purpose  of  proving  the  damage  which 
the  plaintiff  suffered  therefrom,  she  called  as  a  witness  one 
Euuice  M.  Fleuiy,  who,  having  been  asked  certain  questions 
for  the  purpose  of  showing  her  qualifications  to  testify  as  an 
expert  on  the  value  of  the  lounge,  was  asked  by  the  plaintiff, 
"  What  would  be  the  fair  market  value  of  that  sofa  in  July, 
1897?  "  to  which  question  the  witness  answered  :  "  To  any- 
body that  liked  antique  furniture  it  was  worth  fifty  dollars, 
but  if  it  was  sold  at  auction,  or  to  a  person  who  didn't  care 
for  antique  furniture,  it  would  be  probably  from  fifteen  dollars 
to  twenty  dollars."  The  defendants  objected  to  the  answer, 
and  asked  that  it  be  stricken  out ;  but  the  judge  overruled  the 
objection.  The  defendants  then  objected  to  that  part  of  the 
answer  which  stated  that  "To  anybody  who  liked  antique 
furniture  it  was  worth  fifty  dollars,"  and  asked  that  that  part 
might  be  stricken  out ;  but  the  judge  overruled  the  objection, 
and  the  defendants  excepted. 

There  was  no  evidence  from  which  it  could  be  inferred  that 
the  terms  "  second  hand  furniture  "  and  "  antique  furniture" 
are  synonymous  with  or  in  any  way  descriptive  of  the  same 
kind  of  furniture,  or  that  such  terms  were  used  in  that  sense 
by  Fleury ;  but  there  was  evidence  fully  describing  the  con- 
struction and  age  of  the  lounge. 

The  only  other  testimony  as  to  the  value  of  the  lounge  was 
that  of  the  plaintiff,  who  testified  that  it  was  worth  between 
fifteen  and  twenty  dollars. 


BRADLEY  v.  HOOKER.  427 

The  jury  returned  a  verdict  for  the  plaintiff ;  and  the  de- 
fendants alleged  exceptions. 

P.  B.  Kiernan,  for  the  plaintiff,  was  not  called  upon. 

Holmes,  C.  J.  The  question  called  for  the  market  value 
of  the  converted  object,  and  the  answer  was  an  attempt  to 
give  it.  The  market  value  is  at  least  the  highest  price  that  a 
normal  purchaser  not  under  peculiar  compulsion  will  pay  at 
the  time  and  place  in  question  in  order  to  get  the  thing.  See 
National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313, 
315.  In  the  stock  exchange  buyers  and  sellers  are  brought 
together  in  a  focus,  with  the  result  that  there  is  no  danger  of 
missing  the  highest  price  \>y  the  accident  of  missing  the  man 
who  would  give  it.  Even  if  at  a  given  moment  there  is  no 
buyer  of  the  class  that  would  most  desire  a  certain  stock  or 
bond,  there  is  an  organized  public  read}'  to  buy  upon  the  an- 
ticipation that  such  a  buyer  will  be  found,  and  regulating  the 
price  which  it  will  pay,  more  or  less  by  that  anticipation. 
There  is  no  such  focus  for  old  furniture.  The  answer  very 
properly  recognized  the  uncertainty  of  encountering  a  pur- 
chaser who  would  give  the  reasonably  possible  highest  price, 
and  named  an  alternative  sum.  In  a  case  like  this  market 
value  is  a  criterion  which  oscillates  within  limits,  because,  in 
the  absence  of  a  balance  wheel  like  the  stock  exchange,  it 
cannot  be  assumed  with  regard  to  a  single  object  and  a 
single  sale  that  the  element  of  accident  is  eliminated,  and  that 
the  most  favorable  purchaser  will  be  encountered. 

Exceptions  overruled. 


428  CASES  ON  DAMAGES. 


FAIRFAX  v.  NEW  YORK  CENTRAL  AND  HUDSON 
RIVER   RAILROAD. 

New  York,  1878.    73  N.  Y.  167. 

This  action  was  brought  to  recover  the  value  of  a  port- 
manteau and  contents,  alleged  to  have  been  delivered  to 
defendant  at  Troy  to  be  transported  to  New  York,  and  to 
have  been  lost  through  its  negligence.1 

Earl,  J.  The  court  did  not  err  in  charging  the  jury  that 
the  plaintiff  was  entitled  to  recover  the  full  value  of  the 
clothing  for  use  to  him,  in  New  York,  and  not  merely  what 
it  could  be  sold  for  in  money.  The  clothing  was  made  to  fit 
plaintiff,  and  had  been  partly  worn.  It  would  sell  for  but 
little,  if  put  into  market  to  be  sold  for  second-hand  clothing, 
and  it  would  be  a  wholly  inadequate  and  unjust  rule  of  com- 
pensation to  give  plaintiff,  in  such  a  case,  the  value  of  the 
clothing  thus  ascertained.  The  rule  must  be  the  value  of 
the  clothing  for  use  by  the  plaintiff.  No  other  rule  would 
give  him  a  compensation  for  his  damages.  This  rule  must 
be  adopted,  because  such  clothing  cannot  be  said  to  have  a 
market  price,  and  it  would  not  sell  for  what  it  was  really  worth. 

Judgment  affirmed. 


GREEN  v.   BOSTON   &  LOWELL  RAILROAD. 

Massachusetts,  1880.     128  Mass.  221. 

Contract  against  a  common  carrier  to  recover  the  value  of 
an  oil  painting,  the  portrait  of  the  plaintiff's  father.2 

Morton,  J.  The  defendant  asked  the  court  to  rule  that 
"  the  plaintiff  can  recover  only  a  fair  market  value  of  the 
article  lost."     The  general  rule  of  damages  in  trover,  and 

1  Part  of  the  case  is  omitted. 

a  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


GLASPY  v.  CABOT.  429 

in  contract  for  not  delivering  goods,  undoubtedly  is  the  fair 
market  value  of  the  goods.  But  this  rule  does  not  apply 
when  the  article  sued  for  is  not  marketable  property.  To 
instruct  a  jury  that  the  measure  of  damages  for  the  conver- 
sion or  loss  of  a  family  portrait  is  its  market  value  would  be 
merelj'  delusive.  It  cannot  with  any  propriety  be  said  to 
have  any  market  value.  The  just  rule  of  damages  is  the 
actual  value  to  him  who  owns  it,  taking  into  account  its  cost, 
the  practicability  and  expense  of  replacing  it,  and  such  other 
considerations  as  in  the  particular  case  affect  its  value  to  the 
owner.  Stickney  v.  Allen,  10  Gra}r,  352.  The  court  prop- 
erly refused  to  give  the  instruction  requested,  and  we  are  to 
presume  gave  proper  instructions  instead  thereof.  This 
being  the  rule  of  damages,  the  testimony  of  the  plaintiff  that 
he  had  no  other  portrait  of  his  father  would  bear  upon  the 
question  of  its  actual  value  to  him,  and  was  competent. 


GLASPY  v.  CABOT. 

Massachusetts,  1883      135  Mass.  435. 

Field,  J.1  These  defendants  converted  the  schooner  as 
she  lay  on  Coffin's  Beach  in  Annisquam  Harbor.  If  there 
was  no  market  for  such  a  vessel  at  Annisquam,  it  was  her 
value  as  she  lay  there  that  the  defendants  are  liable  to  pay. 
But  in  determining  her  value  there  by  her  value  elsewhere,  a 
reasonable  allowance  must  be  made  "  for  the  probable  cost 
of  getting  her  off,  repairing  her,  and  getting  her"  to  market, 
"less  also  a  reasonable  allowance  for  diminution  in  her  market 
value  on  account  of  having  been  ashore."  These  allowances 
were  made.  The  risks  and  chances  of  getting  her  afloat  and 
getting  her  to  market  must  also  be  taken  into  account.  If 
there  was  no  market  at  Annisquam,  the  learned  justice  had  a 
right  to  consider,  in  assessing  damages,  the  market  value  in 
St.  John,  if  that  was  the  principal  market,  or  one  of  the  prin- 

1  Part  of  the  opinion  is  omitted. 


430  CASES  ON  DAMAGES. 

cipal  markets,  in  which  such  vessels  are  bought  and  sold,  and 
it  was  practicable  to  attempt  to  carry  her  there.  He  had  a 
right  also  to  consider  other  markets  ;  the  test  is  what  bikers 
of  vessels,  from  St.  John,  Boston,  or  other  ports,  would  pay 
for  her  as  she  lay  on  Coffin's  Beach,  if  all  the  facts  of  her 
condition  were  known.  If  there  were  no  direct  satisfactory 
evidence  of  this,  and  the  court  was  satisfied  that  St.  John 
was  the  best  market,  and  that  it  was  practicable  to  attempt 
to  take  her  there,  her  market  value  when  taken  to  St.  John 
could  be  considered  ;  but,  in  addition  to  the  allowances  made 
from  her  market  value  in  St.  John,  there  should  have  been 
an  allowance  for  the  fair  value  of  the  risks  of  getting  her 
there.  If  she  were  properly  repaired  for  the  vo}'age,  the 
usual  rate  of  insurance  for  such  a  vessel  on  such  a  voyage 
would  be  evidence  of  the  value  of  the  risk  of  taking  her  from 
the  port  of  repair  to  St.  John.  Perhaps  a  fair  salvage  for 
getting  her  off  and  bringing  her  to  a  port  of  repair,  when  the 
salvors  would  be  entitled  to  nothing  except  out  of  the  prop- 
ertj'  saved,  would  be  evidence  of  the  amount  of  the  allow- 
ance to  be  made  for  the  risk  and  cost  of  removing  her  to 
such  a  port.  We  think  the  rule  of  damages  adopted  was  too 
liberal  under  the  circumstances  stated  in  the  exceptions,  and 
that  there  must  be  a  new  trial  in  the  second  action,  upon  the 
amount  of  damages  only.  Bourne  v.  Ashley,  1  Lowell,  27  ; 
Saunders  v.  Clark,  106  Mass.  331  ;  Coolidge  v.  Choate,  11 
Met.  79.  Ordered  accordingly. 


DU  BOST  v.  BERESFORD. 

Westminster  Sittings,  1810.     2  Camp.  511. 

Trespass  for  cutting  and  destroying  a  picture  of  great 
value,  which  the  plaintiff  had  publicby  exhibited ;  per  quod 
he  had  not  only  lost  the  picture,  but  the  profits  he  would  have 
derived  from  the  exhibition.     Plea,  not  guilty. 

It  appeared  that  the  plaintiff  is  an  artist  of  considerable 
eminence,  but  that  the  picture  in  question,  entitled  La  Belle 


REDMOND  v.   AMERICAN  MANUFACTURING  CO.      431 

et  la  Bete,  or  "Beauty  and  the  Beast,"  was  a  scandalous 
libel  upon  a  gentleman  of  fashion  and  his  lady,  who  was  the 
sister  of  the  defendant.  It  was  exhibited  in  a  house  in  Pall- 
Mali  for  money,  and  great  crowds  went  daily  to  see  it,  till 
the  defendant  one  morning  cut  it  in  pieces.  Some  of. the 
witnesses  estimated  it  at  several  hundred  pounds. 

The  plaintiff's  counsel  insisted,  on  the  one  hand,  that  he 
was  entitled  to  the  full  value  of  the  picture,  together  with  a 
compensation  for  the  loss  of  the  exhibition  ;  while  it  was  con- 
tended, on  the  other,  that  the  exhibition  was  a  public  nuisance, 
which  every  one  had  a  right  to  abate  by  destroying  the 
picture. 

Lord  Ellenborotjgh.  The  only  plea  upon  the  record 
being  the  general  issue  of  not  guilty,  it  is  unnecessary  to  con- 
sider, whether  the  destruction  of  this  picture  might  or  might 
not  have  been  justified.  The  material  question  is,  as  to  the 
value  to  be  set  upon  the  article  destroyed.  If  it  was  a  libel 
upon  the  persons  introduced  into  it,  the  law  cannot  consider 
it  valuable  as  a  picture.  Upon  an  application  to  the  Lord 
Chancellor,  he  would  have  granted  an  injunction  against  its 
exhibition,  and  the  plaintiff  was  both  civilly  and  criminally 
liable  for  having  exhibited  it.  The  jury,  therefore,  in  assess- 
ing the  damages,  must  not  consider  this  as  a  work  of  art,  but 
must  award  the  plaintiff  merely  the  value  of  the  canvas  and 
paint  which  formed  its  component  parts. 

Verdict  for  the  plaintiff.     Damages  £5.1 


REDMOND  v.  AMERICAN  MANUFACTURING  CO. 

New  York,  1890.     121  N.  Y.  415. 

O'Brien,  J.  The  plaintiff  was  the  inventor  of  a  machine, 
upon  which  he  procured  a  patent,  for  the  purpose  of  inserting 
and  fastening  rivets  in  the  joints  of  umbrella  ribs  and 
stretchers  where  they  are  fastened  together.     The  defendant, 

1  Part  of  the  case  is  omitted. 


432  CASES  ON  DAMAGES. 

a  corporation  organized  for  manufacturing  purposes,  was 
engaged  in  making  and  selling  the  ribs  and  other  parts  of 
umbrellas.  The  plaintiff  and  defendant  entered  into  an 
agreement  to  the  effect  that  the  plaintiff  should  manufacture 
and  set  up  in  the  defendant's  factory  fourteen  of  these 
machines,  and  should  for  a  certain  period,  personally  or  by 
skilled  agents,  superintend  the  operation  of  the  same  and 
instruct  defendant's  employes  in  the  operation  thereof.  The 
defendant  during  this  period  was  to  furnish  sufficient  work 
for  the  operation  of  the  machines  to  their  full  capacity,  and 
to  pay  the  plaintiff's  agents  for  their  services  in  superintend- 
ing the  operation  of  the  machines  and  instructing  its  em- 
ployes in  their  use  out  of  the  saving  that  might  be  effected 
by  the  machines  in  the  cost  of  doing  the  work  which  pre- 
viously had  been  clone  by  hand  at  a  certain  specified  price 
per  dozen  sets.  At  the  expiration  of  this  period  the  defend- 
ant was  to  have  the  option  of  returning  the  machines  to  the 
plaintiff  or  of  purchasing  the  same  and  paying  therefor  a  cer- 
tain agreed  price,  which  should  be  equal  to  the  sum  found  to 
be  the  saving  on  300,000  dozen  sets  by  said  machines  work- 
ing to  their  full  capacity,  compared  with  the  cost  of  doing  the 
same  work  by  hand  at  the  prices  paid  therefor  and  specified 
in  the  agreement.  The  plaintiff  manufactured  and  put  the 
machines  in  the  defendant's  factory,  and  furnished  persons 
to  superintend  the  operation  thereof,  but  he  claims  that  the 
defendant  failed  to  furnish  sufficient  work  during  the  period 
of  trial  to  enable  said  machines  to  be  operated  to  their  full 
capacity,  and  that,  notwithstanding  this  failure,  the  machines 
did  actually  effect  a  saving  of  fully  one  half  in  the  previous 
cost  of  the  work.  At  the  conclusion  of  the  trial  period  the  de- 
fendant did  not  elect  to  purchase  the  machines.  The  title 
to  the  same  never  passed  from  the  plaintiff,  and  on  Oct.  27, 
1884,  he  demanded  of  the  defendant  the  return  to  him  of  the 
property.  This  demand  gave  rise  to  negotiations  between 
the  parties,  which,  however,  ended  without  any  result,  where- 
upon the  plaintiff  brought  this  action  to  recover  the  posses- 
sion of  the  fourteen   machines,   or  their  value  in  case  a 


REDMOND   v.  AMERICAN   MANUFACTURING   CO.      433 

delivery  to  bim  could  not  be  made,  and  the  sura  of  $15,000 
as  damages  for  the  detention  thereof  after  demand. 

On  the  trial  of  the  action  in  the  Superior  Court,  the  plain- 
tiff recovered,  the  jury  assessing  the  value  of  the  property  at 
$2,100,  and  under  the  charge  of  the  court  the  plaintiff  was 
awarded  $445,  being  the  interest  on  the  value  of  the  machines 
from  the  time  of  the  demand,  as  damages  for  the  unlawful 
detention. 

The  plaintiff,  at  the  trial,  offered  to  prove  the  value  of  the 
use  of  the  machines  from  the  time  of  the  demand  as  his  dam- 
ages for  their  detention,  but  the  evidence  was  excluded  un- 
der the  defendant's  objection,  the  plaintiff  excepting.  The 
plaintiff  appealed  from  so  much  of  the  judgment  in  his  favor 
as  limited  the  damages  for  detention  to  the  interest  on  the 
value  of  the  property,  and  the  General  Term  has  affirmed  the 
ruling  at  the  trial  on  this  question  of  damages. 

The  property  in  question  was  evidently  manufactured  and 
delivered  to  the  defendant  for  the  purpose  of  sale.  The  pre- 
cise sum  to  be  paid  was  not  specified  in  dollars  and  cents, 
but  depended  upon  what  the  machines  could  accomplish  in 
the  way  of  saving  for  the  defendant  within  a  designated 
period  of  time  under  certain  conditions,  and  in  this  way  the 
price  of  the  article  was  capable  of  being  ascertained  by  a  pro- 
cess of  calculation  provided  for  in  the  agreement  under  which 
it  was  delivered  by  the  plaintiff.  The  record  does  not  show 
that  the  machines  had  an}'  marketable  value,  and  it  is  to  be 
inferred  from  the  proofs  at  the  trial  that  they  had  been 
recently  invented,  and  had  not  been  yet  brought  into  such 
general  use  as  to  furnish  any  reliable  or  certain  standard  of 
value  for  their  use  by  the  defendant.  The  agreement  under 
which  they  came  into  the  defendant's  possession  shows  that 
their  general  utility  and  capacity  had  not  been  fully  estab- 
lished, and  that  the}'  were  considered  by  both  parties  as  some- 
what of  an  experiment.  The  property  being  without  a  market 
value  the  parties  at  the  trial  were  obliged  to  submit  the  case 
to  the  jury  upon  evidence  given  by  both  sides  as  to  their  in- 
trinsic value  or  the  cost  of  production.     There  is  no  coin- 

28 


434  CASES  ON  DAMAGES. 

plaint  on  the  part  of  the  plaintiff  that  the  property  was  less 
valuable  at  the  trial  on  account  of  the  manner  in  which  it 
was  used,  or  for  any  other  reason  than  when  it  was  delivered 
to  the  defendant.  The  wrong  that  the  plaintiff  has  suffered 
consisted  entirely  in  the  neglect  of  the  defendant  to  return 
the  property  to  the  plaintiff  when  he  demanded  it.  The 
property  was  rightfully  in  defendant's  possession  until  the 
parties,  at  the  end  of  the  trial  period,  failed  to  agree  upon  a 
price  for  it  upon  the  basis  of  the  agreement.  The  plaintiff 
was  entitled  to  have  the  value  of  the  property,  at  the  time  of 
the  trial,  found  and  awarded  to  him  in  case  the  property  it- 
self could  not  be  returned  (N.  Y.  G.  &  I.  Co.  v.  Flynn,  55 
N.  Y.  563),  and  the  jury  assessed  the  value  as  of  that  time. 
If  the  interest  on  this  value  during  the  time  that  the  defend- 
ant retained  the  property  after  demand  is,  under  the  circum- 
stances of  this  case,  the  legal  compensation  for  the  defendant's 
wrong  in  not  returning  the  property  on  demand,  the  plaintiff 
has  no  reason  for  complaint.  It  is  urged  upon  this  appeal 
on  the  authority  of  Allen  v.  Fox,  51  N.  Y.  562,  that  he  was 
entitled  to  recover  as  damages  for  the  unlawful  detention 
of  the  property  such  sum  as  he  could  prove  to  be  the  value 
of  the  use  of  the  property  during  the  period  that  it  was 
wrongfully  detained.  That  was  an  action  to  recover  the 
possession  of  a  horse,  and  what  is  there  called  the  usable 
value  of  the  horse,  was  held  to  be  a  proper  measure  of 
damages  for  its  detention.  The  learned  judge,  who  gave  the 
opinion  in  the  case,  admits  that  the  interest  on  the  value  of 
the  property,  at  the  time  of  the  trial,  is  generally  the  proper 
measure  of  damages  for  its  wrongful  detention  when  it  con- 
sists of  merchandise  kept  for  sale,  and  all  other  articles  of 
property,  valuable  only  for  sale  or  consumption.  In  actions 
to  recover  the  possession  of  specific  personal  property,  many 
cases,  no  doubt,  may  and  do  arise  where  the  interest  would 
not  furnish  to  the  owner  of  the  property  a  just  or  sufficient 
indemnity  for  his  loss ;  but  such  cases  are  special  and  excep- 
tional, and  it  is  scarcely  possible  to  group  them  under  any 
general  rule  or  principle.     There  is  a  manifest  difference 


KEDMOND  v.  AMERICAN  MANUFACTURING  CO.      435 

between  the  case  of  the  wrongful  detention  of  a  horse  or 
other  property  which  is  in  constant  and  daily  use,  and  the 
usable  value  of  which  is  well  known  and  readily  ascertained, 
and  property  of  the  character  of  that  which  was  the  subject 
of  controversy  in  this  case.  Here  the  property  was  manu- 
factured and  delivered  to  the  defendant  for  the  purpose  of 
sale,  like  any  other  article  of  merchandise.  It  is  not  claimed, 
and  it  is  not  at  all  likely  that  the  plaintiff  could  have  put  the 
machines  to  any  other  use  while  the  defendant  detained  them 
after  the  demand.  When  machinery,  in  operation,  is  taken 
from  the  owner  of  a  factory,  who  requires  it  for  immediate, 
constant,  and  daily  use,  and  detained  by  the  wrong-doer,  such 
an  act  would  probably  inflict  upon  the  owner  damages  which 
could  not  be  compensated  by  the  interest  on  its  value  for  the 
period  of  the  wrongful  detention.  But,  when,  as  in  this  case, 
the  maker  of  a  patented  machine  or  article,  desiring  to  intro- 
duce it  into  general  use,  delivers  it  with  a  view  to  a  sale  and 
afterward  becomes  entitled  to  have  the  same  returned  to  him 
by  reason  of  the  failure  of  the  party  to  whom  it  is  delivered 
on  trial  to  accept  it,  or  comply  with  the  terms  and  conditions 
upon  which  it  was  delivered,  the  interest  on  its  price  or  value 
from  the  time  of  the  wrongful  detention  to  the  trial  furnishes 
a  just  indemnity  for  the  wrong  and  the  proper  rule  of  dam- 
ages in  such  cases. 

We  think  that  the  record  in  this  case  does  not  disclose  any 
of  those  special  features  calling  for  a  larger  measure  of  dam- 
ages than  that  generally  applicable  to  cases  for  the  conversion 
of  personal  property,  narneby,  the  interest  on  its  fair  value 
from  the  time  of  the  conversion.  Brizsee  v.  Maybee,  21 
Wend.  144  ;  Rowley  v.  Gibbs,  14  Johns.  385. 

The  judgment  is  right  and  should  be  affirmed. 

All  concur.  Judgment  affirmed. 


CHAPTER  XII. 

INTEREST. 


DODGE  v.  PERKINS. 
Massachusetts,  1830.     9  Pick.  368. 

Putnam,  J.1  The  questions  arising  in  this  case  are,  first, 
whether  the  defendant  is  liable  to  pay  interest  from  the  time 
when  he  received  the  money,  to  the  time  when  the  plaintiff, 
as  the  executor  of  Unite  Dodge,  deceased,  demanded 
payment. 

And  if  so,  then,  secondly,  upon  what  amount  the  interest 
shall  be  calculated. 

The  action  is  upon  an  implied  assumpsit,  and  the  judgment 
sounds  wholly  in  damages  for  the  non-performance  of  the  con- 
tract or  undertaking.  If  the  interest  is  not  included  in  the 
contract,  it  cannot  be  given.  If  it  is  included,  then  it  should 
make  up  a  part  of  the  judgment. 

This  rule  applies  as  well  to  implied  as  to  express  con- 
tracts, and  to  verbal  as  well  as  to  written  promises.  Where 
there  is  an  express  promise  in  writing  to  pay  interest,  the 
amount  of  the  damages  becomes  a  mere  matter  of  calculation. 
But  whether  there  has  been  an  implied  promise  to  pay  inter- 
est, often  depends  upon  the  usages  of  trade  and  dealings  be- 
tween the  parties,  and  other  circumstances,  which  explain  the 
duty  undertaken  to  be  performed.  And  if  upon  the  whole 
matter  the  defendant  has  not  performed  it,  interest  is  to  be 
assessed  as  damages  for  the  breach.     If  it  were  not  so,  the 

1  Part  of  the  opinion  is  omitted. 


DODGE  v.  PERKINS.  437 

remedy  would  be  incomplete.  Those  usages  of  trade,  and 
other  facts  and  circumstances,  and  the  dealings  between 
the  parties,  are  proper  subjects  for  the  consideration  of  the 
jury.  But  when  they  are  agreed  by  the  parties  or  found  by 
the  jury,  the  law  arising  from  them  is  to  be  declared  by  the 
court. 

If,  for  example,  one  should  promise  in  writing  to  pa\-  money 
to  another  on  a  da}'  certain,  and  fail  to  do  so,  interest  would 
be  added  to  the  amount  of  damages,  notwithstanding  the 
writing  did  not  express  it.  It  would  be  added  as  a  compen- 
sation for  the  non-performance  of  the  contract.  If  there  were 
a  verbal  contract  to  the  same  effect,  the  same  rule  of  damages 
should  be  followed.  The  case  of  Robinson  v.  Bland,  2  Burr. 
1086,  is  a  leading  one  upon  this  point.  It  was  before  the 
Revolutionary  War,  and  was  determined  by  Lord  Mansfield 
and  his  able  associates,  upon  sound  principles.  It  was  for 
money  lent  in  France,  for  the  security  of  which  a  bill  of  ex- 
change was  drawn  payable  at  a  short  sight  in  England.  The 
bill  of  exchange  however  was  avoided,  because  it  was  given 
for  money  lent  at  the  time  and  place  of  gaming.  The  contract 
raised  by  the  law,  to  pay  for  the  money  lent,  was  held  to  be 
good,  although  the  security  was  void.  Upon  the  facts  found, 
the  court  were  to  determine  whether  interest  should  be  pay- 
able ;  and  they  held  that  it  was  to  be  inferred,  from  the  facts 
proved,  that  the  money  was  to  be  paid  in  England  at  a  cer- 
tain time,  and  that  interest  should  be  added,  as  part  of  the 
damages,  up  to  the  time  of  the  judgment. 

There  the  borrower,  Sir  John  Bland,  died,  and  there  was 
no  express  promise  concerning  interest.  The  money  was  not 
paid.  Lord  Mansfield  said,  "  Although  this  be  nominally 
an  action  for  damages,  and  damages  be  nominally  recovered 
in  it,  yet  it  is  really  and  effectually  brought  for  a  specific  per- 
formance of  the  contract.  For  where  money  is  made  payable 
by  an  agreement  between  parties,  and  a  time  r/iren  for  the 
payment  of  it,  this  is  a  contract  to  pay  the  money  at  the  given 
time,  and  to  pay  interest  for  it  from  the  given  day,  in  case  of 
failure  of  payment  at  that  day."     Wilmot,  J.,  in  a  very  able 


438  CASES  ON  DAMAGES. 

opinion,  said  (p.  1083),  the  damage  was  the  whole  interest 
due  upon  the  money  lent,  from  the  time  of  its  being  payable, 
up  to  the  time  of  signing  the  judgment.  Interest  was  added 
to  the  principal  sum  accordingly,  and  the  judgment  was  for 
the  aggregate  sum,  as  damages  for  the  breach  of  the  contract. 

If  the  money  is  not  paid  at  the  day  stipulated,  the  debtor 
is  in  fault.  He  detains  the  money  of  his  creditor.  So  if  the 
money  is  payable  upon  demand,  interest  is  allowable  after  a 
demand,  by  writ  or  otherwise.  The  law  supposes  the  party 
to  be  in  fault,  if  he  does  not  pay  upon  demand. 

The  great  inquiry  is,  whether  the  party  has  done  all  that 
the  law  required  of  him  in  the  particular  case  ;  whether  act- 
ing on  his  own  account,  or  as  agent,  executor,  administrator, 
guardian,  or  trustee  for  others.  If  he  has,  he  is  not  account- 
able for  interest ;  if  he  has  not,  he  is  accountable  for  it  as  a 
compensation  for  the  non-performance  of  his  contract. 

There  are  cases  where  the  law  requires  the  part}'  to  pay 
over  money  which  he  has  acquired,  immediately,  without  wait- 
ing for  an}-  demand  or  request  of  payment ;  as  where  he  has 
obtained  it  by  fraud.  The  promise  which  the  law  implies, 
extends  as  well  to  the  interest  as  to  the  principal  sum,  so 
wrongfully  acquired  and  detained.  In  Wood  v.  Bobbins, 
11  Mass.  B.  506,  the  part}'  was  originally  and  continually 
in  fault. 

The  same  rule  applies  where  the  party  received  the  money 
lawfully,  for  a  particular  purpose,  and  misapplied  it ;  as  in 
Fowler  v.  Shearer,  7  Mass.  B.  14,  where  the  defendant  (who 
was  an  attorney)  should  have  indorsed  it  on  a  note  which  he 
held  for  collection,  but  did  not,  and  in  consequence  of  his  neg- 
lect the  promiser  was  obliged  to  pay  the  whole  of  the  note. 
It  was  held  that  the  attorney  was  accountable  for  interest,  as 
well  as  principal,  and  Parsons,  C.J.,  thought  that  the  interest 
should  commence  from  the  time  of  payment.  That  was  an 
action  for  money  had  and  received. 

The  same  rule  is  recognized  in  Hughes  v.  Kearney,  1  Sch. 
&  Lefr.  134,  where  the  vendee  retained  part  of  the  purchase 
money  to  pay  off  encumbrances,  but  did  not     It  was  deter- 


DODGE  v.  PERKINS.  439 

mined  that  it  should  carry  interest,  because  there  was  a 
misappropriation. 

The  same  rule  should  apply  where  a  party  has  acted  as 
agent  to  render  a  reasonable  account,  but  has  omitted  to  do 
so  for  an  unreasonable  time.  Interest  should  be  calculated 
from  the  time  of  the  breach  of  his  undertaking.  Crawford  y. 
Willing,  1  Dallas,  349,  note. 

If  the  party  were  a  stakeholder  without  fault,  he  would  not 
be  chargeable,  notwithstanding  the  money  were  in  his  hands 
several  years.     Lee  v.  Munn,  8  Taunt.  45. 

S.  P.  in  Williams  v.  Storrs,  6  Johns.  Ch.  R.  353.  But 
"  if  the  agent  had  received  the  money,"  said  the  Chancellor, 
"  and  neglected  for  a  long  time  to  inform  his  principal  of  the 
fact,  and  wilfully  suffered  him  to  remain  in  ignorance  that  his 
debtor  had  paid  to  the  agent,  there  would  be  equity  in  requir- 
ing the  agent  to  pay  interest,  for  here  would  be  a  case  of 
default,  and  breach  of  duty." 

A  factor  is  in  duty  bound  to  account  to  his  principal,  in  a 
reasonable  time,  without  any  demand,  in  cases  where  a  de- 
mand would  be  impracticable  or  highly  inconvenient.  He 
would  be  held,  according  to  the  course  of  business,  to  give 
his  principal  information  of  his  progress  in  the  transaction, 
and  if  he  should  neglect  unreasonably  to  forward  his  account 
to  his  employer,  this  negligence  would  be  a  breach  of  his  con- 
tract and  subject  him  to  an  action.  Clark  v.  Moody,  17  Mass. 
R.  149  ;  Lady  Ormond  v.  Hutchinson,  13  Ves.  53  ;  Earl  of 
Hardwicke  v.  Vernon,  14  Ves.  504. 

It  is  the  settled  law  of  New  York,  that  interest  is  to  be  al- 
lowed for  money  received  or  advanced  for  the  use  of  another, 
"  after  a  default  in  payment."  Campbell  v.  Mesier,  6  Johns. 
Ch.  R.  24. 

So  if  the  agent  had  engaged  to  invest  the  inone}',  but  omit- 
ted to  do  so,  he  is  to  answer  for  the  interest  from  the  time  he 
should  have  invested.  Brown  v.  Southouse,  3  Bro.  C.  C. 
107;  The  People  v.  Gasherie,  9  Johns.  R.  71. 

There  are  some  late  English  cases,  which  would  seem  to  be 
contrary  to  the  rule  requiring  interest  after  non-payment  at  a 
day  certain. 


440  CASES  ON  DAMAGES. 

Thus  in  Gordon  v.  Swan,  12  East,  419,  which  was  for  the 
price  of  goods  sold  and  delivered  pa}"able  on  a  certain  day, 
Lord  Ellenborough  said,  that  "  the  giving  of  interest  should 
be  confined  to  bills  of  exchange  and  such-like  instruments." 
No  reasons  are  given,  and  it  is  not  easy  to  see  wh}'  the  same 
rule  of  damages  should  not  be  applied  in  that  case,  as  in  the 
case  of  an}'  other  contract  for  money  to  be  paid  at  a  cer- 
tain da}'. 

In  Higgins  v.  Sargent,  2  B.  &  C.  348,  the  restriction  of 
interest  to  mercantile  securities  was  recognized,  and  Abbott, 
C.J.,  stated  the  rule  to  be  established,  that  interest  is  allowed 
by  law  only  upon  mercantile  securities,  or  in  those  cases 
where  there  has  been  an  express  promise  to  pay  interest,  or 
where  such  promise  is  to  be  implied  from  the  usage  of  trade 
or  other  circumstances. 

Now  I  have  no  objection  to  this  general  rule,  but  I  very 
much  doubt  the  application  of  it  according  to  the  case  of  Hig- 
gins v.  Sargent.  That  was  on  a  policy  upon  the  life  of  one 
Burton,  payable  in  six  months  after  proof  of  his  death.  It  is 
difficult  to  perceive  a  good  reason  why  interest  should  not  have 
been  given  after  the  money  ought  to  have  been  paid  accord- 
ing to  the  promise.  That,  we  have  seen,  was  the  principle 
adopted  by  Lord  Mansfield  and  his  associates,  where  the 
promise  was  raised  by  implication  of  law.  A  fortiori  would 
it  seem  to  apply  to  an  undertaking  in  writing.  Lord  Thurlow, 
in  Boddam  v.  Ryley,  1  Bro.  C.  C.  239,  and  2  Bro.  C.  C.  2, 
after  noticing  many  cases,  comes  to  the  conclusion,  that  "  all 
contracts  to  pay  undoubtedly  give  a  right  to  interest  from  the 
time  when  the  principal  ought  to  be  paid." 

We  have  no  statute  regulating  this  subject,  and  none  is 
necessary.  Upon  the  principles  of  the  common  law,  we  think 
it  clear  that  interest  is  to  be  allowed,  where  the  law  by  impli- 
cation makes  it  the  duty  of  the  party  to  pay  over  the  money 
to  the  owner  without  any  previous  demand  on  his  part.  Thus, 
where  it  was  obtained  and  held  by  fraud,  interest  should  be 
calculated  from  the  time  when  it  was  received.  So,  where 
there  has  been  a  default  of  payment  according  to  agreement, 


VAN  "RENSSELAER   v.   JEWETT.  441 

express  or  implied,  to  pay  on  a  day  certain,  or  after  demand, 
or  after  a  reasonable  time. 

The  nature  and  extent  of  the  undertaking  must  depend  up- 
on the  facts  proved  in  each  particular  case.  But  when  it  is 
ascertained  at  what  time  the  money  should  have  been  paid, 
the  law  raises  a  promise  to  pay  damages  for  the  detention 
after  the  breach  of  the  contract.  For  it  is  the  essence  of  every 
assumpsit  or  undertaking,  that  it  is  to  be  performed  specifi- 
cally, or  that  damages  shall  be  paid  for  the  non-performance. 


VAN   RENSSELAER   v.   JEWETT. 

New  York,  1849.     2  Comst.  135. 

Appeal  from  the  Supreme  Court,  where  the  action  was 
brought  by  the  executors  of  the  will  of  Stephen  Van  Rensse- 
laer, deceased,  against  Jewett,  upon  a  covenant  to  pay  rent. 
On  the  trial  at  the  Albany  circuit  in  October,  1844,  before 
Parker,  Circuit  Judge,  the  case  was  this :  By  an  indenture 
dated  Dec.  8,  1813,  the  said  Stephen  Van  Rensselaer  con- 
veyed unto  one  William  Davis,  his  heirs  and  assigns,  one 
hundred  and  eight}'-eight  acres  of  land,  situated  in  Guilderland, 
in  the  county  of  Albany,  reserving  the  yearly  rent  of  eighteen 
bushels  of  wheat,  four  fat  hens,  and  one  day's  service  with 
carriage  and  horses,  which  by  the  same  indenture  the  said 
William  Davis  covenanted  to  pay.  This  indenture  having 
been  read  in  evidence,  the  plaintiffs  proved  an  assignment 
to  the  defendant  made  in  1834,  of  eighty-four  acres  of  the 
same  premises.  The  plaintiffs  then  further  proved  that  the 
amount  of  rent  due  for  the  portion  of  the  premises  so  assigned 
to  the  defendant  for  the  years  1835,  1836,  1837,  and  1838, 
including  interest,  was  at  the  time  of  the  trial  $82.18.  In  this 
calculation  the  defendant  was  charged  in  the  proportion  that 
the  number  of  acres  assigned  to  him  bore  to  the  whole  number 
included  in  the  conveyance,  and  with  interest  upon  each  item 
of  rent  from  the  time,  or  about  the  time,  when  it  fell  due. 


442  CASES  ON  DAMAGES. 

It  appeared  that  the  value  of  the  wheat,  &c,  fluctuated  in  the 
different  years  above  mentioned.  The  defendant  objected  to 
the  proof  and  allowance  of  interest,  but  the  Circuit  Judge  over- 
ruled the  objection,  and  the  defendant  excepted.  The  defend- 
ant's counsel  also  moved  for  a  nonsuit  on  the  grounds  :  1.  That 
the  reservation  of  the  rents  was  void ;  2.  That  there  was  no 
evidence  of  the  relative  value  of  the  lands  assigned  to  "the 
defendant  and  the  remainder  of  the  premises.  The  motion 
was  denied,  and  the  defendant  excepted.  The  jury,  by  the 
direction  of  the  court,  gave  their  verdict  in  the  plaintiffs 
favor  for  $82.18  damages.  The  Supreme  Court  refused  a 
motion  for  a  new  trial  made  on  bill  of  exceptions,  and  the 
defendant  appealed  to  this  court. 

Bronson,  J.  It  is  unnecessary  to  inquire  what  should  have 
been  the  rule  in  apportioning  the  rent ;  for  as  the  proof  stood 
when  the  motion  for  a  nonsuit  was  made,  the  plaintiff  was 
clearly  entitled  to  recover  something,  and  the  motion  was 
therefore  properly  overruled.  The  question  was  not  raised  in 
an}-  other  form  than  by  the  motion  for  a  nonsuit. 

The  only  question  is  on  the  allowance  of  interest.  The 
paj'ment  was  not  to  be  made  in  money,  nor  was  a  specified 
sum  to  be  paid  in  any  other  way.  The  damages  were  un- 
liquidated ;  and  there  was  no  agreement  for  interest.  As  the 
authorities  bearing  on  the  question  have  been  very  fully  con- 
sidered by  the  Supreme  Court  in  this,  and  another  case  which 
will  be  mentioned,  it  cannot  be  necessary  to  review  them  on 
the  present  occasion.  It  was  decided  in  1806,  without  assign- 
ing any  reason  for  the  judgment,  that  interest  was  not  recov- 
erable in  a  case  of  this  kind.     Van  Rensselaer  v.  Platner, 

1  John.  276.  But  since  that  time  the  Supreme  Court  has 
deliberately  held,  on  three  several  occasions,  including  the 
present  one,  that  interest  is  recoverable  in  such  a  case. 
Lush   v.  Druse,  4  Wend.  313  ;   Van  Rensselaer  v.  Jones, 

2  Barb.  643.  The  principle  to  be  extracted  from  these  deci- 
sions may  be  stated  as  follows :  Whenever  a  debtor  is  in 
default  for  not  paying  money,  delivering  property,  or  render- 
ing services  in  pursuance  of  his  contract,  justice  requires  that 


VAN  RENSSELAER  v.  JEWETT.  443 

he  should  indemnify  the  creditor  for  the  wrong  which  has 
been  done  him  ;  and  a  just  indemnity,  though  it  may  some- 
times be  more,  can  never  be  less,  than  the  specified  amount  of 
money,  or  the  value  of  the  propert}'  or  services  at  the  time 
they  should  have  been  paid  or  rendered,  with  interest  from 
the  time  of  the  default  until  the  obligation  is  discharged. 
And  if  the  creditor  is  obliged  to  resort  to  the  courts  for  redress, 
he  ought,  in  all  such  cases,  to  recover  interest,  in  addition  to 
the  debt,  b}'  way  of  damages.  It  is  true  that  on  an  agree- 
ment like  the  one  under  consideration,  the  amount  of  the 
debt  can  only  be  ascertained  by  an  inquiry  concerning  the 
value  of  the  property  and  services.  But  the  value  can  be 
ascertained  ;  and  when  that  has  been  done,  the  creditor,  as  a 
question  of  principle,  is  just  as  plainly  entitled  to  interest 
after  the  default,  as  he  would  be  if  the  like  sum  had  been 
payable  in  mone}*.  The  English  courts  do  not  allow  interest 
in  such  cases  ;  and  I  feel  some  difficulty  in  saying  that  it  can 
be  allowed  here,  without  the  aid  of  an  act  of  the  legislature 
to  authorize  it.  But  the  courts  in  this  and  other  States  have 
for  many  years  been  tending  to  the  conclusion  which  we 
have  finally  reached,  that  a  man  who  breaks  his  contract  to 
pa}r  a  debt,  whether  the  payment  was  to  be  made  in  money, 
or  in  anything  else,  shall  indemnify  the  creditor,  so  far  as 
that  can  be  done  by  adding  interest  to  the  amount  of  damage 
which  was  sustained  on  the  day  of  the  breach.  The  rule  is 
just  in  itself ;  and  as  it  is  now  nearly  nineteen  years  since 
the  point  was  decided  in  favor  of  the  creditor,  and  eight  out 
of  nine  judges  of  the  Supreme  Court  have,  at  different  times, 
concurred  in  that  opinion,  we  think  the  question  should  be 
regarded  as  settled. 

New  trial  denied. 


444  CASES  ON  DAMAGES. 

DANA  v.  FIEDLER. 

New  York,  1854.     12  N.  Y.  40. 

Action  to  recover  damages  for  the  non-delivery  of  one 
hundred  and  fifty  casks  of  madder,  sold  by  Fiedler  to  Dana.1 

Johnson,  J.  Interest  is  a  necessary  item  in  the  estimate 
of  damages  in  this  class  of  cases.  The  part}-  is  entitled  on 
the  day  of  performance  to  the  property  agreed  to  be  de- 
livered ;  if  it  is  not  delivered,  the  law  gives,  as  the  measure 
of  compensation  then  due,  the  difference  between  the  con- 
tract and  market  prices.  If  he  is  not  also  entitled  to  interest 
from  that  time  as  matter  of  law,  this  contradictory  result  fol- 
lows, that  while  an  indemnity  is  professedly  given,  the  law 
adopts  such  a  mode  of  ascertaining  its  amount,  that  the 
longer  a  party  is  detayed  in  obtaining  it,  the  greater  shall  its 
inadequacy  become.  It  is  however  conceded  to  be  law,  that 
in  these  cases  the  jury  ma}'  give  interest  by  waj-  of  damages, 
in  their  discretion.  Now,  in  all  cases,  unless  this  be  an  ex- 
ception, the  measure  of  damages  in  an  action  upon  a  con- 
tract relating  to  money  or  property  is  a  question  of  law,  and 
does  not  at  all  rest  in  the  discretion  of  the  jury.  If  the 
giving  or  refusing  interest  rests  in  discretion,  the  law,  to  be 
consistent,  should  furnish  some  legitimate  means  of  influen- 
cing its  exercise  by  evidence,  as  by  showing  that  the  party  in 
fault  has  failed  to  perform,  either  wilfully  or  by  mere  acci- 
dent, and  without  any  moral  misconduct.  All  such  con- 
siderations are  constantly  excluded  from  a  jur}',  and  the}'  are 
properly  told  that  in  such  an  action  their  duty  is  to  inquire 
whether  a  breach  of  the  contract  has  happened,  not  what 
motives  induced  the  breach. 

That  by  law  a  party  is  to  have  the  difference  between  the 
contract  price  and  the  market  price,  in  order  that  he  may  be 

1  This  short  statement  of  the  cause  of  action  is  substituted  for  the  state- 
ment of  facts  of  the  reporter.     Part  of  the  opinion  is  omitted. 


McMAHON  v.  NEW  YORK  &  ERIE  RAILROAD.      445 

indemnified,  and  because  that  rule  affords  the  measure  of  his 
injury  when  it  occurred ;  that  he  may  not  as  matter  of  law 
recover  interest,  which  is  necessary  to  a  complete  indemnity ; 
that  nevertheless  the  jury  may,  in  their  discretion,  give  him 
a  complete  indemnity,  by  including  the  amount  of  interest  in 
their  estimate  of  his  damages  ;  but  that  he  may  not  give  any 
evidence  to  influence  their  discretion,  presents  a  series  of 
propositions,  some  of  which  cannot  be  law.  The  case  of 
Van  Rensselaer  v.  Jewett,  2  Comst.  141,  establishes  a  prin- 
ciple broad  enough  to  include  this  case,  and  has  freed  the 
law  from  this  as  well  as  other  apparent  inconsistencies  in 
which  it  was  supposed  to  have  become  involved.  The  right 
to  interest,  in  actions  upon  contract,  depends  not  upon  dis- 
cretion but  upon  legal  right,  and  in  actions  like  the  present 
is  as  much  a  part  of  the  indemnity  to  which  the  party  is 
entitled  as  the  difference  between  the  market  value  and  the 
contract  price.  If,  therefore,  the  general  term  committed 
any  error,  it  is  not  one  of  which  the  defendant  can  complain, 
as  it  was  in  his  favor,  and  deprived  the  plaintiffs  of  part  of 
the  relief  to  which  they  were  by  law  entitled. 

The  judgment  should  be  affirmed. 

Selden,  J.,  dissented. 


McMAHON  v.  NEW  YORK  &  ERIE  RAILROAD. 

New  York,  1859.     20  N.  Y.  463. 

Appeal  from  the  Supreme  Court.  Action  to  recover  for 
work  performed  and  materials  furnished  by  Patrick  McMahon 
(who  had  assigned  his  claim  to  the  plaintiff)  in  the  construction 
of  two  sections  of  the  New  York  &  Erie  Railroad.  The  trial 
was  before  one  of  the  justices,  without  jury  and  sitting  in  part 
out  of  term  time,  under  a  stipulation,  substantially  as  referee. 
It  appeared  that  the  work  was  performed  under  a  written 
contract,  and  was  completed  in  October,  1848.  A  large  part 
of  it  consisted  of  earth  and  rock  excavation,  of  which  three 


440  CASES  ON  DAMAGES. 

different  classes  were  defined  in  the  contract,  a  different  price 
heing  stipulated  for  the  execution  of  each  class.  The  con- 
(ractor  had  received  monthly  paj'ments,  according  to  the 
estimates,  classifications,  and  measurements  made  by  the 
engineers  of  the  defendant ;  and  if  these  were  correct,  'there 
was  a  very  trifling  sum  due  to  him  when  the  work  was  com- 
pleted. The  referee  reported  that  there  was  due  to  the 
plaintiff  the  sum  of  $9,927.85,  for  which  judgment  was 
rendered.  Upon  appeal,  the  court  at  general  term,  in  the 
third  district,  affirmed  the  judgment  conditionally,  upon  the 
plantiff  stipulating  to  deduct  $914.49,  which  he  did,  and  the 
defendant  appealed  to  this  court.  The  material  facts  are 
sufficiently  stated  in  the  following  opinion. 

Selden,  J.1  Each  of  the  contracts,  of  which  there  were  two, 
contained  the  following  provision,  viz. :  "  The  work  shall  be 
executed  under  the  direction  and  constant  supervision  of  the 
engineer  of  the  company,  by  whose  measurements  and  calcu- 
lations the  quantities  and  amounts  of  the  several  kinds  of 
work  performed  under  this  contract  shall  be  determined,  and 
who  shall  have  full  power  to  reject  or  condemn  all  work  or 
materials  which  in  his  opinion  do  not  fully  conform  to  the 
spirit  of  this  agreement ;  and  shall  decide  every  question 
which  can  or  may  arise  between  the  parties,  relative  to  the 
execution  thereof,  and  his  decision  shall  be  final  and  bind- 
ing upon  both  parties."  .  .  . 

An  exception  was  taken  to  the  allowance  of  interest  by  the 
referee,  and  this  is  now  insisted  upon  as  fatal  to  the  judgment. 
The  old  common-law  rule,  which  required  that  a  demand 
should  be  liquidated,  or  its  amount  in  some  way  ascertained 
before  interest  could  be  allowed,  has  been  modified  by  general 
consent,  so  far  as  to  hold  that  if  the  amount  is  capable  of  being 
ascertained  b}-  mere  computation,  then  it  shall  cany  interest ; 
and  this  court  in  the  case  of  Van  Rensselaer  v.  Jewett, 
2  Comst.  135,  went  a  step  further,  and  allowed  interest 
upon  an  unliquidated  demand,  the  amount  of  which  could  be 
ascertained  by  computation,  together  with  a  reference  to  well- 

1  Part  of  the  opiuion  is  omitted. 


McMAHON   v.   NEW   YORK   &  ERIE   RAILROAD.      447 

established  market  values ;  because  such  values  in  many 
cases  are  so  nearly  certain,  that  it  would  be  possible  for  the 
debtor  to  obtain  some  proximate  knowledge  of  how  much 
he  was  to  pay.  That  case  went,  I  think,  as  far  as  it  is 
reasonable  and  proper  to  go  in  that  direction.  So  long  as  the 
courts  adhere  even  to  the  principles  of  that  case,  they  are 
not  without  a  rule  which  it  is  possible  to  apply.  The  rule  itself 
is  definite,  and  the  only  uncertainty  which  it  introduces  is 
that  which  necessarily  attends  the  settling  of  market  rates  and 
prices.  In  the  present  case  the  plaintiff's  demand  was  neither 
liquidated  nor  capable  of  being  ascertained  by  computation 
merely  ;  nor  could  its  amount  be  determined  by  any  reference 
to  ordinary  market  rates,  and  hence  interest  could  not  be 
recovered  here  upon  the  principle  adopted  in  the  case  of 
Van  Rensselaer  v.  Jewett. 

There  is,  however,  another  ground  upon  which  interest 
sometimes  is  allowed,  and  perhaps  with  propriety  may  be, 
although  the  amount  of  the  demand  neither  has  been  nor  can 
readily  be  ascertained,  viz. :  that  the  debtor  is  in  default  for 
not  having  taken  the  requisite  steps  to  ascertain  the  amount 
of  his  debt.  The  present  case  is  one  which  strongly  illus- 
trates the  reasonableness  of  such  a  rule.  Whether  the  engi- 
neer, by  whom  the  work  was  to  be  measured,  is  to  be  legally 
regarded  in  respect  to  that  dut}-,  as  the  agent  of  both  parties, 
or  of  the  defendants  only,  he  was  in  the  general  employment 
of  the  defendants,  and  ready  to  obey  their  behests.  If  they 
had  done  their  duty,  by  causing  him  to  make  an  accurate 
estimate  of  the  work,  the  amount  of  the  claim  would  have 
been  so  ascertained  as  to  have  carried  interest.  Perhaps 
they  ought  not  to  be  considered  as  in  default  until  they  were 
requested  by  the  contractor  to  have  an  estimate  made  ;  be- 
cause it  was  as  much  his  dut}'  to  request  to  have  it  done  as  it 
was  theirs  to  direct  the  engineer  to  do  it.  Interest,  therefore, 
if  allowed  upon  this  principle,  should  be  computed  only  from 
the  time  of  the  refusal  by  the  defendants  when  called  upon, 
either  to  cause  a  final  estimate  to  be  made,  or  to  correct  that 
already  made.  Judgment  affirmed. 


448  CASES  ON  DAMAGES. 

FRAZER  v.  BIGELOW  CARPET  CO. 

Massachusetts,  1886.     141  Mass.  126. 

Holmes,  J.  This  is  an  action  for  the  negligent  destruction 
of  property  by  the  same  disaster  which  was  discussed  in 
Bryant  v.  Bigelow  Carpet  Co.,  131  Mass.  491.  The  defend- 
ants' liability  is  admitted,  and  the  only  question  is  whether 
the  tribunal  assessing  the  damages  had  power,  in  its  discre- 
tion, to  add  interest  to  the  sum  which  it  found  to  represent 
the  plaintiffs  loss  on  the  day  it  took  place. 

Interest  was  allowed,  without  discussion,  in  Bryant  v. 
Bigelow  Carpet  Co.,  ubi  supra.  It  is  allowed  as  of  right  in 
trover  and  other  like  actions  ;  and  although  it  is  suggested 
that,  in  such  cases,  the  defendant  ma}'  be  presumed  to  have 
had  the  use  of  the  goods  since  the  conversion,  this  is  not 
necessarily  the  fact,  and,  if  it  were,  would  have  no  bearing 
on  the  indemnity  due  the  plaintiff.  Interest  is  allowed  in 
the  Admiralty  upon  damages  for  collision,  and  other  courts 
have  adopted  the  Admiralty  doctrine.  Straker  v.  Hartland, 
2  H.  &  M.  570 ;  The  Amalia,  34  L.  J.  Adm.  21 ;  The 
Dundee,  2  Hagg.  Adm.  137 ;  The  Mary  J.  Vaughan,  2  Ben. 
47  ;  Parrott  v.  Knickerbocker  Ice  Co.,  46  N.  Y.  361 ;  Mailler 
v.  Express  Propeller  Line,  61  N.  Y.  312.  The  same  principle 
has  been  applied  in  other  cases  of  the  negligent  destruction 
of  property.  Chapman  v.  Chicago  &  Northwestern  Railway, 
26  Wis.  295,  304  ;  Sanborn  v.  Webster,  2  Minn.  323.  See 
also  Lawrence  Railroad  v.  Cobb,  35  Ohio  St.  94. 

Notwithstanding  the  language  of  Wood,  V.C.,  in  Straker 
v.  Hartland,  ubi  supra,  it  may  be  conceded,  for  the  purposes 
of  this  decision,  that  a  mere  liability  to  pay  such  a  sum,  if 
any,  as  a  jury  may  hereafter  determine,  cannot  properly  be 
called  a  debt.  Read  v.  Nash,  1  Wils.  305  ;  Lewkner  v. 
Freeman,  Prec.  Ch.  105;  s.  c.  1  Eq.  Cas.  Abr.  149,  pi.  5; 
Freem.  Ch.  236.  Compare  Kay  v.  Pennsylvania  Railroad, 
65  Penn.  St.  269,  277.     And   we  will  assume  that  the  sum 


RICHARDS  v.   CITIZENS'  NATURAL  GAS  CO.        449 

ultimately  found  by  the  jury  cannot  be  said  to  have  been 
wrongfully  detained  before  the  finding,  in  such  a  sense  that 
interest  is  due  eo  nomine.  Blogg  v.  Johnson,  L.  E.  2  Ch. 
225,  230  ;   Chicago  v.  Allcock,  8G  111.  384. 

But  we  have  heard  no  reason  suggested  why,  if  a  plaintiff 
has  been  prevented  from  having  his  damages  ascertained, 
and,  in  that  sense,  has  been  kept  out  of  the  sum  that  would 
have  made  him  whole  at  the  time,  so  long  that  that  sum  is 
no  longer  an  indemnity,  the  jury,  in  their  discretion,  and  as 
incident  to  determining  the  amount  of  the  original  loss,  may 
not  consider  the  delay  caused  bj-  the  defendant.  In  our 
opinion  they  may  do  so ;  and,  if  they  do,  we  do  not  see  how 
they  can  do  it  more  justly  than  by  taking  interest  on  the 
original  damage  as  a  measure.  See  further  Lincoln  v.  Claflin, 
7  Wall.  132, 139  ;  and  the  often  cited  language  of  Shaw,  C.J., 
in  Parks  v.  Boston,  15  Pick.  198,  208;  Burt  v.  Merchants' 
Ins.  Co.,  115  Mass.  1,  14;  Old  Colony  Railroad  v.  Miller, 
125  Mass.  1,  4. 

It  is  argued  that  the  discretion  was  exercised  wrongly,  be- 
cause the  delay  was  due  to  the  plaintiff's  not  bringing  his 
action.  But  he  presented  his  claim,  and  was  informed  that  the 
defendants  denied  their  liability.  Under  such  circumstances, 
the  most  prudent  and  economical  thing  for  both  parties  was  for 
the  plaintiff  to  postpone  his  suit  until  a  test  case  had  settled  the 
question.  The  delay  for  that  purpose  was  caused  by  the  de- 
fendants as  truly  as  if  a  suit  had  been  begun  and  continued  to 
await  the  decision  in  Bryant  v.  Bigelow  Carpet  Co. 

Judgment  for  the  plaintiff  for  $4000,  and  interest. 


RICHARDS   v.   CITIZENS'  NATURAL  GAS  CO. 

Pennsylvania,  1889.     130  Pa.  37. 

Charles  Richards  brought  trespass  against  the  Citizens' 
Natural  Gas  Company  to  recover  damages  for  the  destruction 
of  his  household  goods,  caused  by  an  explosion  of  natural  o-as 

29 


450  CASES   ON  DAMAGES. 

alleged  to  have  occurred  in  consequence  of  the  defendant's 
negligence.1 

Mitchell,  J.  Interest  as  such  is  recoverable  only  where 
there  is  a  failure  to  pay  a  liquidated  sum  due  at  a  fixed  day, 
and  the  debtor  is  in  absolute  default.  It  cannot,  therefore, 
be  recovered  in  actions  of  tort,  or  in  actions  of  any  kind 
where  the  damages  are  not  in  their  nature  capable  of  exact 
computation,  both  as  to  time  and  amount.  In  such  cases  the 
party  chargeable  cannot  pa}r  or  make  tender  until  both  the 
time  and  the  amount  have  been  ascertained,  and  his  default  is 
not  therefore  of  that  absolute  nature  that  necessarily  involves 
interest  for  the  dela}'.  But  there  are  cases  sounding  in  tort,  and 
cases  of  unliquidated  damages,  where  not  only  the  principal 
on  which  the  recovery  is  to  be  had  is  compensation,  but  where 
also  the  compensation  can  be  measured  by  market  value,  or 
other  definite  standards.  Such  are  cases  of  the  unintentional 
conversion  or  destruction  of  property,  etc.  Into  these  cases 
the  element  of  time  may  enter  as  an  important  factor,  and 
the  plaintiff  will  not  be  fully  compensated  unless  he  receive, 
not  011I3'  the  value  of  his  property,  but  receive  it,  as  nearly  as 
may  be,  as  of  the  date  of  his  loss.  Hence  it  is  that  the  jury 
may  allow  additional  damages,  in  the  nature  of  interest,  for 
the  lapse  of  time.  It  is  never  interest  as  such,  nor  as  a  mat- 
ter of  right,  but  compensation  for  the  delay,  of  which  the 
rate  of  interest  affords  the  fair  legal  measure. 

These  principles  have  been  very  recently  affirmed  by  this 
Court  in  Penna.,  etc.  R.  Co.  v.  Ziemer,  124  Pa.  571,  and 
Plymouth  Tp.  v.  Graver,  125  Pa.  37;  and  although,  as  said 
by  our  brother  Clark  in  the  last  case,  there  is  some  conflict 
in  the  decisions  (Railroad  Co.  v.  Gesner,  20  Pa.  242  ;  Del., 
etc.  R.  Co.  v.  Burson,  61  Pa.  380 ;  Pittsb.  S.  Ry.  Co.  v.  Tay- 
lor, 104  Pa.  306,  and  Allegheny  City  v.  Campbell,  107  Pa.  530), 
it  is  not  so  much  in  regard  to  the  principles,  as  in  the  mode 
of  expression.  The  contest  has  been  whether  the  allowance 
should  be  made  or  not ;  and  the  name  by  which  it  should  be 
called,  whether  interest  or  compensation  for  delay,  measured 

1  The  statement  of  facts  is  omitted. 


RICHARDS   v.   CITIZENS'  NATURAL  GAS  CO.        451 

by  the  rate  of  interest,  received  little  attention,  and  it  was 
incautious]}7  said  that  interest  was  or  was  not  to  be  allowed. 
The  distinction,  however,  is  important,  for  failure  to  observe 
it  leads  to  confusion,  as  in  the  present  case.  Interest  is  recov- 
erable of  right,  but  compensation  for  deferred  payment  in 
torts  depends  on  the  circumstances  of  each  case.  The  plaintiff 
ma}'  have  set  his  damages  so  inordinately  high  as  to  have  justi- 
fied the  defendant  in  refusing  to  pay,  or  in  other  ways  the  delay 
may  be  plaintiff's  fault ;  or,  the  liability  of  defendant  may 
have  arisen  without  fault,  as  in  Weir  v.  Allegheny  Co.,  95 
Pa.  413.  In  such  cases  the  jury  probably  would  not,  and 
certainly  ought  not  to  make  the  allowance.  It  was  said  by 
Lewis,  J.,  in  Railroad  Co.  v.  Gesner,  20  Pa.  242,  "the  second 
exception  raises  the  question  whether  interest  can  be  allowed 
on  the  compensation  from  the  time  when  the  company  took 
possession  of  the  land.  ...  A  purchaser  in  possession  of 
land  under  articles  is  bound  to  pay  interest,  unless  relieved 
by  the  equity  of  peculiar  circumstances,  upon  the  principle 
that  a  just  compensation  cannot  be  made  without  paying  not 
only  the  value,  but  interest  on  the  value  to  compensate  for  the 
delay.  This  is  the  rule,  unless  the  delay  has  been  caused  by 
a  party  claiming  the  interest."  This  was  said  in  a  case  of 
damages  for  the  taking  of  land  by  eminent  domain  ;  but,  not- 
withstanding some  confusion  of  thought  in  the  analogy  of  a 
purchase  of  land  under  articles  of  agreement,  and  some  care- 
lessness in  the  use  of  the  term  "  interest,"  it  illustrates  the  true 
rule  that  in  actions  like  the  present,  interest  is  not  recoverable 
as  such,  and  the  allowance  of  compensation  for  delay  depends 
on  the  circumstances,  and  must  therefore  be  determined  by  the 
jury.  The  learned  judge  below  inadvertently  directed  the  jury 
to  allow  interest  as  a  matter  of  law.  This  was  a  technical  error, 
but  as  the  amount  is  quite  small,  and  the  defendants  in  error 
have  expressed  their  desire  to  yield  it  rather  than  have  the  con- 
troversy further  prolonged,  the  judgment  will  not  be  reversed, 
but  will  be  reduced  by  striking  off  the  interest. 

Judgment  reduced  nunc  pro  tunc,  as  of  Nov.  17,  1888, 
to  $383,  and  thereupon  judgment  affirmed. 


452  CASES  ON  DAMAGES. 


LOUISVILLE   &   NASHVILLE  RAILROAD  CO.  v. 
WALLACE. 

Tennessee,  1891.     91  Tenn.  35. 

Snodgrass,  J.  The  defendant  in  error,  while  in  the  ser- 
vice of  the  Louisville  &  Nashville  Railroad  Company  as 
brakeinan,  sustained  severe  personal  injury,  resulting  in  the 
loss  of  a  leg,  which  he  alleged  was  occasioned  by  the  negli- 
gence of  the  company.  He  sued  for  $15,000  damages,  and 
recovered  judgment  for  $9,940.  The  company  appealed,  and 
assigned  numerous  errors.  It  is  not  deemed  material  to 
notice  but  one  of  them,  as  the  others  are  not  well  taken, 
and  involve  nothing  new,  so  as  to  make  their  consideration 
in  a  written  opinion  necessaiy.  The  one  material  to  be  con- 
sidered relates  to  the  question  of  interest.  The  court  told 
the  jury  it  could  assess  plaintiff's  damages  with  or  without 
interest,  as  the  jury  should  see  proper,  in  connection  with  in- 
structions as  to  the  measure  of  damages  not  otherwise  com- 
plained of.  The  verdict  assessed  the  damages  at  $7,000 
with  seven  years'  interest,  $2,940,  aggregating  $9,940.  It  is 
objected  in  the  assignment  of  errors  that  the  charge  on  this 
question,  and  verdict,  with  judgment  thereon,  are  erroneous. 
This  involves  a  consideration  of  the  question,  what  is  the  true 
measure  of  damages  for  such  personal  injury?  The  rule  for 
determining  damages  for  injuries  not  resulting  in  death  (where 
the  statute  fixes  the  measure),  and  not  calling  for  exemplar}' 
punishment,  deducible  from  the  decisions  of  this  court  since 
its  organization  in  this  State,  is  that  of  compensation  for 
mental  suffering  and  physical  pain,  loss  of  time,  and  ex- 
penses incident  to  the  injur}*,  and,  if  it  be  permanent,  the 
loss  resulting  from  complete  or  partial  disability  in  health, 
mind,  or  person  thereb}'  occasioned.  '  And  this  is  the  rule 
most  consonant  to  reason  adopted  in  other  States.  1  Sedg. 
Dam.  (8th  ed.)   §  481  et  seq. ;  5  Amer.  &  Eng.  Enc.  Law. 


LOUISVILLE  &  NASHVILLE   E.  R.  CO.  v.  WALLACE.    453 

pp.  40-44  and  notes ;  Railroad  Co.  v.  Read,  87  Arner.  Dec. 
260.  As  this  sum  in  gross  includes  all  the  compensation 
which  is  requisite  to  cover  pain,  suffering,  and  disability  to 
date  of  judgment,  and  prospectively  beyond,  it  is  intended  to 
be  and  is  the  full  measure  of  recovery,  and  cannot  be  supple- 
mented by  the  new  element  of  damages  for  the  detention  of 
this  sum  from  the  date  of  the  injury.  The  measure  of  dam- 
ages being  thus  fixed,  it  is  expected  that  in  determining  it 
juries  and  courts  will  make  the  sum  given  in  gross  a  fair  and 
just  compensation,  and  one  in  full  of  amount  proper  to  be 
given  when  rendered,  whether  soon  or  late  after  the  injury ; 
as,  if  given  soon,  it  looks  to  continuing  suffering  and  disability, 
just  as,  when  given  late,  it  includes  that  of  the  past.  It  is 
obvious  that  damages  could  not  be  given  for  pain  and  suffer- 
ing and  disability  experienced  on  the  very  day  of  trial,  and 
then  interest  added  for  years  before.  These  are  items  con- 
sidered to  make  up  the  aggregate  then  due,  and  the  gross 
sum  then  for  the  first  time  judicially  ascertained.  The  error 
of  the  court  below  was  in  the  assumption  that  a  like  measure 
of  damages  is  applied  in  this  class  of  cases  as  in  that  of 
injury  to  property  effecting  its  destruction  or  conversion  or 
other  unlawful  or  fraudulent  misappropriation,  or  detention 
of  property  or  money,  in  which  the  rule  applied  by  the  Cir- 
cuit Judge  is  held  to  be  a  proper  one  ;  not  on  the  theoiy, 
even  in  this  class  of  cases,  that  interest  as  such  is  due,  but 
that  the  plaintiff  is  entitled  to  the  fixed  sum  of  monej'  or 
definite  money  value  of  property  converted  or  destroyed,  and 
the  jury  may  give  as  damages  an  amount  equal  to  interest  on 
the  value  of  the  property.  But  such  rule  applies  alone  to 
such  cases,  and  not  to  that  of  personal  injury,  which  does  not 
.cease  when  inflicted,  and  is  not  susceptible  of  definite  and 
accurate  computation.  It  never  creates  a  debt,  nor  becomes 
one,  until  it  is  judicially  ascertained  and  determined.  Only 
from  that  time  can  it  draw  interest ;  and  interest  or  damages 
cannot  at  any  preceding  time  be  added  to  it  without  changing 
and  superadding  a  new  element,  never  given  in  this  State 
or  any  other  in  a  similar  case,  so  far  as  our  investigation  has 


454  CASES  ON  DAMAGES. 

discovered.  The  counsel  of  plaintiff,  who  cite  many  au- 
thorities supposed  to  be  in  support  of  the  ruling  below,  were 
doubtless  misled  by  the  generality  of  terms  used  in  some  of 
them.  Under  the  head  of  "  Interest,"  after  stating  that  "  it 
was  general^  allowed  by  law  on  two  grounds,  namely,  on 
contract,  express  or  implied,  or  by  wa}'  of  damages  either  for 
default  in  payment  of  a  debt  or  for  a  use  or  benefit  derived 
from  the  money  of  another,"  it  is  stated  in  1 1  Amer.  &  Eng. 
Enc.  Law  that,  "where  it  is  imposed  to  punish  tortious, 
negligent,  or  fraudulent  conduct,  it  is  a  question  within  the 
discretion  of  the  jury  "  (p.  380).  For  this  proposition  vari- 
ous authorities  are  cited,  including  Mr.  Sedgwick  on  Damages, 
p.  374  (the  reference  being  to  paging  of  the  fifth  or  earlier 
edition).  This  author  uses  similar  general  terms,  but  neither 
was  speaking  of  cases  of  personal  injury,  but  of  the  class  of 
cases  to  which  we  have  referred,  as  full}'  appears  from  Mr. 
Sedgwick's  further  discussion  of  this  general  head,  on  pages 
385,  386,  and  as  most  clearly  appears  from  a  reference  to 
the  authorities  cited  by  both,  which  relate  to  cases  of  trover 
and  trespass,  and  to  property  controversies  only.  In  neither 
of  these  books  is  the  proposition  now  thought  to  be  sustained 
by  them  advanced,  —  that  the  measure  of  damages  for  a  per- 
sonal injury  includes  damages  for  detention  of  the  supposed 
amount  due.  The  generality  of  statement  indulged  in  that 
and  former  editions  of  this  work  is  corrected  by  editors  of 
the  last  edition.  Chapter  X.  of  the  first  volume  of  this  edi- 
tion is  devoted  to  interest  allowed,  in  actions  where  it  is  by 
rule  of  law,  or  in  the  discretion  of  the  jury  or  court  trying 
the  case,  allowed  as  part  of  the  measure  of  damages.  In 
these  cases  are  enumerated  and  discussed  those  actions 
sounding  in  tort  in  which  interest  may  be  given  as  dam- 
ages. The  distinction  is  there  taken,  as  taken  here,  and 
actions  for  personal  injuries  excluded,  because  of  the  exist- 
ence of  a  wholly  different  measure  of  damages  respecting 
them.  In  this  connection  we  quote  section  320  in  the  volume 
and  chapter  referred  to :  "It  sufficiently  appears,  from  what 
has  already  been  said,  that  there  is  no  general  principle  which 


LOUISVILLE  &  NASHVILLE  R.  R.  CO.  v.  WALLACE.     455 

prevents  the  recovery  of  interest  in  actions  of  tort.  The 
fact  that  the  demand  is  unliquidated  has  been  shown  to  be 
insufficient  to  exclude  interest,  and  there  is  nothing  in  the 
mere  form  of  the  action  which  renders  it  unreasonable  that 
interest  should  be  given.  Nevertheless  it  is  in  the  region  of 
tort  that  we  find  the  clearest  cases  for  disallowance  of  in- 
terest. There  are  many  cases  which  are  not  brought  to 
recover  a  sum  of  money  representing  a  property  loss  of  the 
plaintiff,  and  it  is  frequently  said  broadly  that  interest  is  not 
allowed  in  such  actions.  It  is  certainly  not  allowed  in  such 
actions  as  assault  and  battery,  or  for  personal  injury  by 
negligence,  libel,  slander,  seduction,"  etc.  The  measure  of 
damage  in  such  case  seems  nowhere  to  include  this  or  be 
based  upon  this  idea.  Even  in  respect  to  injury  or  destruc- 
tion of  property,  where  the  Supreme  Court  of  the  United 
States  has  adopted  fully  the  prevailing  rule  allowing  dam- 
ages in  the  form  of  interest  on  value  of  the  property,  the 
rule  has  been  limited  to  such  injury  of  property  or  property 
right  as  had  a  fixed  or  certain  value ;  and  it  is  accordingly 
held  in  that  court  that  indefinite  damages,  as  that  resulting 
from  infringement  of  a  patent,  could  not  bear  interest  until 
after  the  amount  had  been  judicially  ascertained.  Tilghman 
v.  Proctor,  125  U.  S.  161,  8  Sup.  Ct.  Rep.  894. 

The  direct  question  we  are  considering  also  came  be- 
fore the  Supreme  Judicial  Court  of  Maine,  and  it  was  there 
held  that  the  rule  permitting  damages  equal  to  interest  on 
value  of  property  in  cases  of  trespass  and  trover  did  not 
apply,  and  that  interest  could  not  be  allowed  upon  a  recovery 
for  personal  injury,  and  that,  too,  under  a  statute  authorizing 
a  recovery  "to  the  amount  of  the  damage  sustained"  (this 
not  material,  however,  as  their  statute  gave  no  more  nor  less 
right  than  exists  here).  Sargent  v.  Hampden,  38  Me.  581. 
The  cases  cited  by  the  editors  of  the  last  edition  of  Sedgwick 
on  Damages  sustaining  the  proposition  that  interest  cannot 
be  included  in  a  recovery  of  damages  for  personal  injuries 
are  from  Georgia  and  Pennsylvania.  Ratteree  v.  Chapman, 
79  Ga.  574,  4  S.   E.  Rep.  684  ;  Railroad  Co.  v.  Young,  81 


456  CASES  ON  DAMAGES. 

Ga.  397,  7  S.  E.  Rep.  912  ;  Railway  Co.  v.  Taylor,  104  Pa.  St 
306.  These  cases  have  all  been  examined,  and  full}-  sustain 
the  text.  One  of  the  cases  cited  to  the  proposition  in  Amer. 
&  Eng.  Enc.  Law  was  a  Pennsylvania  case,  earlier  than 
either  of  those  to  which  we  have  referred.  The  case  there 
cited  (Fasholt  v.  Reed,  16  Serg.  &  R.  266),  which  we  have 
not  been  able  to  find  in  libraries  here,  was  evidently  not  one 
of  personal  injury,  or  else  not  consistent  with  later  holdings 
of  that  court.  Indeed  the  Pennsylvania  court  seems  hardly 
to  have  gone  as  far  on  that  question  in  reference  to  allowance 
of  interest  as  damages  in  other  actions  ex  delicto  as  other 
courts.  In  suits  for  the  destruction  of  property  that  court 
has  held  that,  while  lapse  of  time  may  be  looked  to,  it  is 
error  to  instruct  the  jury  that  plaintiff  is  entitled  to  interest 
on  such  damage  from  the  time  it  occurred.  Township  of 
Plymouth  v.  Graver,  125  Pa.  St.  24,  17  Atl.  Rep.  249; 
Emerson  v.  Schoonmaker,  135  Pa.  St.  437,  19  Atl.  Rep.  1025. 
Of  the  other  cases  cited  in  Amer.  &  Eng.  Enc.  Law,  we  have 
examined  those  in  13  Wis.  31  (Hinckle}'  v.  Beckwith),  36 
N.  Y.  639  (Vandevoort  v.  Gould),  and  30  Tex.  349  (Wolfe 
v.  Lacy).  They  all  sustain  the  text  as  it  is  intended  to  be 
understood,  and  as  we  have  herein  explained,  and  doubtless 
the  other  cases  do  so.  To  the  same  effect  are  the  cases  of 
Lincoln  v.  Claflin,  7  Wall.  132  ;  Dyer  v.  Navigation  Co.,  118 
U.  S.  507,  6  Sup.  Ct.  Rep.  1174;  U.  S.  v.  North  Carolina, 
136  U.  S.  211,  10  Sup.  Ct.  Rep.  920  ;  Clement  v.  Spear,  56 
Vt.  401 ;  and  cases  from  American  decisions  and  reports 
cited  in  Rapalje's  Digest,  volume  1,  pp.  1039-1041,  under 
heads  "Trover,"  and  "When  Interest  may  be  Added,"  and 
volume  ii.  p.  1991,  under  head  of  "  Interest."  See,  also, 
1  Sedg.  Dam.  §§  432-493  (8th  ed.).  The  effect  and  meaning 
of  statements  quoted  from  Amer.  &  Eng.  Enc.  Law,  and  its 
reference  to  Sedg.  Dam.  are  made  perfectly  clear  when  these 
cases  and  authorities  herein  added  are  examined,  and  the 
generality  of  expressions  limited  to  the  purpose  of  their  use, 
and  the  class  of  cases  being  considered.  They  were  not  deal- 
ing at  all,  nor  intended  to  be  understood  as  dealing,  with  the 


OLD  COLONY  RAILROAD  v.   MILLER.       457 

question  of  recover}-  for  personal  injuries,  which  is  itself  a 
recovery  of  damages  pure  and  simple,  and  measured  by  a 
rule  which  needs  no  supplement  that  would  add  damages  to 
damages.  The  charge  and  verdict  were  therefore  erroneous 
on  this  point,  and  prejudicial  to  defendant  to  the  extent  and 
only  to  the  extent  of  the  injury.  The  Circuit  Judge  might 
have  refused  to  receive  the  verdict  as  to  interest,  and  the 
same  effect  may  now  follow  a  remitting  of  the  interest  by 
plaintiff,  if  he  elects  to  do  so.  In  that  event  the  plaintiff  is 
entitled  to  a  judgment  for  $7000,  with  interest  from  date  of  its 
rendition,  and  costs,  and  with  this  modification  the  judgment 
will  be  affirmed.  This  was  the  practice  adopted  in  the  Maine 
case  on  this  point,  as  well  as  in  one  of  the  Pennsylvania 
cases  (135  Pa.  St.  437,  19  Atl.  Rep.  1025),  citing  several 
others,  and  is  clearly  the  correct  rule.  In  default  of  such 
remission,  a  new  trial  will  be  granted. 


OLD  COLONY  RAILROAD  v.  MILLER. 

Massachusetts,  1878.     125  Mass.  1. 

Colt,  J.1  The  right  of  the  land-owner  to  damages  for 
land  taken  by  a  railroad  corporation  is  complete  when  the 
location  is  made.  That  act  constitutes  the  taking.  It  is  the 
loss  occasioned  by  the  exercise  of  the  right  of  eminent  domain 
at  that  time,  for  which  the  statutes  provide  indemnity.  The 
amount  is  then  due,  and,  if  agreed  upon  by  the  parties,  must 
be  then  paid.  If  not  agreed  on,  the  damages  are  assessed 
by  a  jury  on  the  application  of  either  part}- ;  but  they  are 
assessed  as  of  the  time  of  the  location,  and  the  jury  may  prop- 
erly allow  interest  upon  the  amount  ascertained  as  damages, 
for  the  detention  of  the  money  from  the  time  of  the  taking. 

1  Part  of  the  opinion  is  omitted. 


458  CASES  ON  DAMAGES. 

SOUTH  PARK   COMMISSIONERS   v.   DUNLEVY. 

Illinois,  1878.     91  111.  49. 

Craig,  C.J.1  This  was  a  proceeding,  instituted  in  the  Cir- 
cuit Court  of  Cook  County,  by  the  South  Park  Commissioners, 
for  the  condemnation  of  two  certain  tracts  of  land,  containing 
twenty  acres  each,  for  park  purposes.  .   .  . 

The  question  presented  by  the  record  is,  whether  the  court 
erred  in  instructing  the  jury  to  allow  interest  on  the  value  of  the 
property  from  the  time  the  petition  was  filed  until  the  trial. 
It  is  insisted  by  the  defendants  that  it  is  inequitable  to  have 
their  property  taken  from  them  and  not  allow  interest  from  the 
time  of  the  taking.  The  commissioners  had  no  right  to  take 
the  property  or  to  disturb  the  defendants  in  the  enjoyment  of 
the  possession  thereof,  until  the  damages  had  been  ascertained 
in  the  mode  provided  by  law,  and  paid.  The  filing  of  a  peti- 
tion to  condemn  property  is  not  a  taking  of  the  same.  If  the 
commissioners  took  possession  of  defendants'  property  before 
the  damages  were  assessed  and  paid,  they  were  trespassers,  for 
which  the  law  gives  an  ample  remedy.  There  is  some  slight 
evidence  in  the  record  tending  to  prove  that  the  commissioners 
assumed  control  over  the  property,  but  there  was  no  issue  of 
that  kind  in  the  case,  and  the  instruction  is  not  predicated  on 
the  existence  of  that  fact.  The  evidence,  therefore,  bearing 
upon  that  point,  we  do  not  regard  of  any  importance.  The 
defendants  had  the  right  to  the  possession  and  use  of  their 
property  after  the  petition  was  filed,  the  same  as  before,  and 
we  perceive  no  reason  why  they  should  have  the  use  of  the 
property  and  at  the  same  time  be  allowed  interest  upon  its 
value,  before  it  was  actually  taken. 

1  Part  of  the  opinion  is  omitted. 


EATON  v.  BOISSONNAULT.  459 

BRANNON  v.   HURSELL. 

Massachusetts,  1873.     112  Mass.  63. 

Contract  against  John  C.  Hursell  and  Horace  Humphrey 
on  a  promissory  note.1 

Morton,  J,  One  question  of  practical  importance  as  to 
the  amount  of  Humphrey's  liability,  remains  to  be  considered. 
The  rate  of  interest  specified  in  the  note  is  ten  per  cent,  and 
the  plaintiff  claims  interest  at  that  rate  since  the  maturity  of  the 
note.  We  are  of  opinion  that  he  is  entitled  to  recover  it.  The 
legal  rate  of  interest  is  six  per  cent,  in  the  absence  of  any  agree- 
ment for  a  different  rate  ;  but  it  is  lawful  for  parties  to  contract 
to  pay  and  receive  a  different  rate,  and  when  the  agreement 
to  pay  a  greater  rate  is  in  writing,  it  can  be  recovered  by  action. 
St.  1867,  c.  56.  In  the  case  at  bar,  the  defendants  have  agreed 
in  writing  that  the  rate  of  interest  for  the  use  of  the  plaintiffs 
money  shall  be  ten  per  cent.  The  plaintiff  recovers  interest, 
both  before  and  after  the  note  matures,  by  virtue  of  the  con- 
tract, as  an  incident  or  part  of  the  debt,  and  is  entitled  to  the 
rate  fixed  by  the  contract.  Ayer  v.  Tilden,  15  Gray,  178; 
Morgan  v.  Jones,  8  Exch.  620  ;  Keene  v.  Keene,  3  C.  B. 
(n.  s.)  144  ;  Miller  v.  Burroughs,  4  Johns.  Ch.  436. 

Exceptions  overruled. 

EATON  v.   BOISSONNAULT. 

Maine,  1877.     67  Maine,  540. 

Walton,  J.  The  question  is,  what  rate  of  interest  shall 
be  allowed  on  notes  after  they  have  matured. 

When  it  is  expressly  stated  in  a  note  that  if  it  is  not  paid 
at  maturity,  it  shall  thereafter  bear  interest  at  a  rate  named, 
the  rate  named  is  recoverable,  although  it  is  much  larger  than 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


460  CASES   ON   DAMAGES. 

the  usual  or  statutory  rate.     So  held  in  Capen  v.  Crowell,  66 
Maine,  282. 

When  a  note  is  made  payable  at  a  future  day,  with  interest 
at  the  rate  of  three  per  cent  per  annum,  and  nothing  is  said 
therein  about  the  rate  of  interest  which  it  shall  draw  there- 
after, if  not  paid  at  maturity,  it  will  draw  the  interest  named 
till  maturity,  and  after  that  the  usual  or  statutory  rate.  So 
held  in  Ludwick  v.  Huntzinger,  5  Watts  &  Serg.  51. 

A  note  payable  at  a  future  day,  with  interest  at  two  per 
cent  a  month,  in  which  nothing  is  said  about  the  rate  of  inter- 
est after  maturity,  will  draw  that  rate  of  interest  till  the  note 
matures,  and  after  that  only  the  usual  or  statutory  rate.  So 
held  in  Brewster  v.  Wakefield,  22  Howard,  118,  and  in  Burn- 
hisel  v.  Firman,  22  Wall.  170. 

The  same  rule  was  acted  upon  in  the  House  of  Lords  in 
England  in  a  recent  case.     Cook  v.  Fowler,  L.  R.  7  H.  L.  27. 

The  reason  given  by  Lord  Selborne,  in  the  case  last  cited, 
is  that  interest  for  the  delay  of  payment,  post  diem,  is  not 
given  on  the  principle  of  implied  contract,  but  as  damages  for 
a  breach  of  contract ;  that  while  it  might  be  reasonable,  under 
some  circumstances,  and  the  debtor  might  be  very  willing  to 
pa}T  five  per  cent  per  month  for  a  very  short  time,  it  would 
by  no  means  follow  that  it  would  be  reasonable,  or  that  the 
debtor  would  be  willing  to  pay,  at  the  same  rate,  if,  for  some 
unforeseen  cause,  payment  of  the  note  should  be  delayed  a 
considerable  length  of  time. 

Similar  views  were  expressed  b}r  Chief  Justice  Taney,  in 
Brewster  v.  Wakefield,  22  How.  118.  He  says  that  when 
the  note  is  entirety  silent  as  to  the  rate  of  interest  thereafter, 
if  it  is  not  paid  at  maturit}",  the  creditor  is  entitled  to  interest 
after  that  time  by  operation  of  law  and  not  b}'  virtue  of  any 
promise  which  the  debtor  has  made  ;  that  if  the  right  to 
interest  depended  upon  the  contract,  the  holder  would  be 
entitled  to  no  interest  whatever  after  the  day  of  payment. 

In  a  recent  case  in  Massachusetts,  the  court  held  that 
when  a  recovery  is  had  upon  a  note  bearing  ten  per  cent 
interest,  the  plaintiff  is  entitled  to  interest  at  the  same  rate 


BICKFORD  v.   RICH.  461 

till  the  time  of  verdict.  Brarmon  v.  Hursell,  112  Mass.  63. 
The  reason  given  is  that  "  the  plaintiff  recovers  interest, 
both  before  and  after  the  note  matures,  by  virtue  of  the  con- 
tract, as  an  incident  or  part  of  the  debt,  and  is  entitled  to 
the  rate  fixed  by  the  contract."  This  reasoning  is  at  variance 
with  the  reasoning  in  the  House  of  Lords  in  the  case  cited ; 
and  with  the  reasoning  of  the  Supreme  Court  of  the  United 
States,  in  the  cases  cited ;  and  with  the  reasoning  of  the 
Massachusetts  court  itself,  in  Ayer  v.  Tilden,  15  Gray,  178. 
It  is  there  said  that  the  interest  after  maturity  "  is  not  a  sum 
due  by  the  contract ;  that  it  is  given  as  damages  for  the  breach 
of  the  contract,  and  must  follow  the  rule  in  force  within  the 
jurisdiction  where  judgment  is  recovered." 

We  think  the  rule  laid  down  b3'  the  Supreme  Court  of  the 
United  States,  and  by  the  House  of  Lords  in  England,  is  the 
correct  one.  It  has  been  followed  in  Connecticut.  Hubbard 
v.  Callahan,  42  Conn.  524.  And  in  Rhode  Island.  Pierce  v. 
Swaupoint  Cemetery,  10  R.  I.  227.  In  the  last  case  the  court 
say  that  if  the  parties  to  the  note  or  other  contract  for  the 
payment  of  money,  intend  that  it  shall  carry  the  stipulated 
rate  of  interest  till  paid,  they  can  easily  entitle  themselves  to 
it,  by  saying  so,  in  so  many  words.  The  practice  in  this 
State  has  been  in  accordance  with  the  rule  laid  down  b}T  the 
Supreme  Court  of  the  United  States,  in  Brewster  v.  Wake- 
field, 22  Howard,  118;  and  we  see  no  reason  for  departing 
from  it.  Exceptions  overruled. 


BICKFORD  v.  RICH. 

Massachusetts,  1870.     105  Mass.  340. 

Morton,  J.  The  defendant,  having  been  adjudged  trustee 
of  the  plaintiff,  and  having  paid  upon  the  judgment  against 
him  twenty-five  dollars,  is  by  the  express  provisions  of  the 
statute  discharged  from  all  demand  by  the  plaintiff  to  the 
amount  of  such  payment.  Gen.  Sts.  c  142,  §  37.  The  plain- 
tiff is  not  entitled  to  any  judgment,  unless  he  shows  that 


462  CASES  ON  DAMAGES. 

some  amount  is  due  him  for  interest  upon  the  bill  against  the 
defendant,  which  has  accrued  since  this  suit  was  commenced. 
It  does  not  appear  that  the  bill  due  by  the  defendant  bore 
interest  by  reason  of  any  contract  or  promise  to  pa}'  interest. 
On  the  contrary,  the  agreed  statement  finds  that  "  any  in- 
terest that  may  be  due  is  due  as  damages  resulting  from  non- 
payment, or  the  delay  in  payment."  This  being  so,  the  case 
of  Oriental  Bank  v.  Tremont  Insurance  Co.,  4  Met.  1,  is  de- 
cisive against  the  plaintiff's  claim  of  interest.  The  defendant 
has  not  promised  to  pay  interest ;  he  was  prevented  by  the 
law  from  paying  the  principal ;  and  he  is  in  no  fault  for  not 
paying  it,  and  ought  not  to  be  charged  with  interest  as 
damages  for  nonpayment. 

Judgment  for  the  defendant. 


HENRY  v.  FLAGG. 

Massachusetts,  1847.     13  Met.  64. 

Dewey,  J.  The  case  of  Hastings  v.  "Wiswall,  8  Mass. 
455,  early  settled  the  principle,  that  upon  a  note,  payable  in 
a  certain  number  of  years  with  annual  interest,  judgment 
could  be  recovered  only  for  simple  interest  on  the  principal 
sum.  The  question  there  arose,  upon  a  motion  in  behalf  of 
the  plaintiff,  that  in  entering  up  the  judgment,  the  interest 
due  by  the  terms  of  the  note  at  the  expiration  of  each  year 
should  be  added  to  the  principal,  and  interest  be  cast  upon 
the  aggregate,  and  so  from  year  to  year ;  but  this  was  re- 
fused, and  simple  interest  on  the  principal  sum  only  was 
allowed  by  the  court.  This  opinion  was  reaffirmed,  or  rather 
recognized  as  the  existing  rule  of  law,  by  C.  J.  Parker,  in 
Barrell  v.  Joy,  16  Mass.  227.  It  was  also  somewhat  consid- 
ered in  the  case  of  Wilcox  v.  Howland,  23  Pick.  167,  where 
it  was  again  held  that  an  action  will  not  lie  to  recover  inter- 
est upon  interest,  although  a  new  contract,  made  after  such 
interest  had  accrued  (as  in  the  case  of  a  promissory  note 
given  for  compound  interest) ,  would  be  a  valid  promise,  and 


HENRY  v.  FLAGG.  463 

might  be  enforced.  These  cases  seem  to  settle  the  general 
principle  as  to  the  right  to  enforce  payment  of  compound 
interest  upon  antecedent  contracts,  and  would  preclude  a 
recovery  of  such  interest  in  the  ordinary  case  of  a  promise  to 
pay  compound  interest. 

The  only  further  inquiry  is,  therefore,  whether  this  case 
falls  within  the  principles  settled  in  the  adjudicated  cases.  It 
is  supposed  by  the  plaintiff  that  there  are  elements  in  the 
present  case,  that  will  materially  distinguish  it  from  those 
alluded  to.  It  is  true  that  the  promise,  which  is  the  subject 
of  the  present  action,  is  a  promise  to  pay  the  annual  interest 
of  certain  notes  of  Elijah  Flagg  and  Joshua  Flagg,  if  the 
makers  of  those  notes  do  not  make  such  annual  payment  of 
interest.  The  makers  of  those  notes  are  not  sued,  but  the 
party  giving  the  collateral  promise  to  pay  annual  interest. 
We  perceive  no  distinction,  however,  in  the  principle  of  the 
two  cases.  As  a  prospective  promise  to  pay  compound  inter- 
est, it  is  equally  objectionable  as  if  made  Irv  the  makers  of 
the  note.  The  payment  of  interest  on  the  whole  sum  might 
have  been  enforced  by  action  to  enforce  the  payment  of  the 
same  at  the  end  of  each  year,  if  the  plaintiff  had  seen  fit  so 
to  do.  Not  having  done  so,  it  is  as  much  to  be  presumed  in 
this  as  in  the  cases  of  annual  interest  stipulated  for  in  the 
note  itself,  that  the  party  waives  such  claim  for  annual  inter- 
est. Indeed,  the  same  objection,  whether  it  be  that  of  waiver, 
or  that  the  policy  of  the  law  is  adverse  to  compound  inter- 
est, applies  to  both  cases.  The  plaintiff,  having  received  the 
simple  interest  upon  the  principal  of  the  notes,  which  are  the 
subject  of  the  defendant's  promise,  and  having  forborne  to 
enforce  against  the  defendant  the  payment  of  annual  interest 
from  year  to  }'ear,  as  he  might  have  done,  cannot  now 
enforce  the  payment  of  compound  interest. 

Judgment  for  the  defendant. 


464  CASES  ON  DAMAGES. 

AURORA  v.  WEST. 

United  States  Supreme  Court,  1868.     7  Wall.  82. 

Clifford,  J.1  Exceptions  were  taken  to  the  ruling  of  the 
court  in  allowing  interest  upon  the  coupons,  and  the  bill  of 
exceptions  states  that  the  exception  of  the  defendants  was 
allowed,  but  it  does  not  state  what  amount  of  interest  was 
included  in  the  judgment,  nor  give  the  basis  on  which  it  was 
computed.  Judging  from  the  amount  of  the  sum  found  due,  it 
is,  perhaps,  a  necessar}'  inference  that  interest  was  allowed  on 
each  coupon  from  the  time  it  fell  due  to  the  date  of  the  judg- 
ment, and,  if  so,  the  finding  was  correct. 

Bonds  and  coupons  like  these,  by  universal  usage  and  con- 
sent, have  all  the  qualities  of  commercial  paper.  Mercer  v. 
Hacket,  1  Wallace,  83  ;  Meyer  v.  Muscatine,  lb.  384.  Cou- 
pons are  written  contracts  for  the  payment  of  a  definite  sum 
of  money  on  a  given  day,  and  being  drawn  and  executed  in 
a  form  and  mode  for  the  very  purpose  that  they  may  be 
separated  from  the  bonds,  it  is  held  that  they  are  negotiable, 
and  that  a  suit  may  be  maintained  on  them  without  the  neces- 
sity of  producing  the  bonds  to  which  they  were  attached. 
Knox  Company  v.  Aspinwall,  21  Howard,  544;  White  v. 
Railroad,  21  Howard,  575  ;  McCoy  v.  County  of  Washington, 
7  American  Law  Register,  193;  Parsons  on  Bills  and  Notes, 
115.  Interest,  as  a  general  rule,  is  due  on  a  debt  from  the  time 
that  payment  is  unjustly  refused,  but  a  demand  is  not  necessary 
on  a  bill  or  note  payable  on  a  given  day.  Vose  v.  Philbrook. 
3  Story,  336  ;  Hollingsworth  v.  Detroit,  3  McLean,  472. 
Being  written  contracts  for  the  payment  of  money,  and  nego- 
tiable because  payable  to  bearer  and  passing  from  hand  to 
hand,  as  other  negotiable  instruments,  it  is  quite  apparent  on 
general  principles  that  they  should  draw  interest  after  pay- 
ment of  the  principal  is  unjustly  neglected  or  refused.    Dela- 

1  Part  of  the  opinion  is  omitted. 


AURORA  v.  WEST.  465 

field  v.  Illinois,  2  Hill,  177 ;  Williams  v.  Sherman,  7  Wendell, 
112.  Where  there  is  a  contract  to  pay  money  on  a  da}*  fixed, 
and  the  contract  is  broken,  interest,  as  a  general  rule,  is 
allowed,  and  that  rule  is  universal  in  respect  to  bills  and 
notes  payable  on  time.  2  Parsons  on  Bills  and  Notes,  393. 
Governed  by  that  rule,  this  court,  in  the  case  of  Gelpcke  v. 
Dubuque,  1  Wallace,  206,  held  that  the  plaintiff,  in  a  case 
entirely  analogous,  was  entitled  to  recover  interest.  Thom- 
son v.  Lee  County,  3  Wallace,  332. 


30 


CHAPTER  XIII. 

DAMAGES   IN   CERTAIN   ACTIONS  OP  TORT. 


BENNETT  v.  LOCKWOOD. 

New  York,  1838.     20  Wend.  223. 

Nelson,  C.J.  The  defendant  took  the  horse  and  wagon 
of  the  plaintiffs  wrongfully,  and  used  them,  by  reason  of 
which  taking  the  plaintiffs  were  induced  to  believe  that  the 
person  to  whom  they  had  hired  it  temporarily  had  absconded, 
and  therefore  they  went  in  pursuit  of  their  property,  and  ex- 
pended time  and  money.  It  is  insisted  for  the  plaintiff  in 
error  that  the  Common  Pleas  erred  in  allowing  the  plaintiffs 
to  recover  for  the  time  spent  and  expenses  incurred,  on  the 
ground  that  the  damages  thus  claimed  were  not  the  natural 
or  necessary  consequence  of  the  wrongful  taking.  Admitting 
the  counsel  for  the  plaintiff  to  be  right  in  this  proposition,  it 
is  no  objection  to  the  recovery  if  the  damages  were  proximate 
and  not  too  remote,  and  were  claimed  in  the  declaration. 
1  Chitty's  R.  333  ;  1  Saund.  PL  and  Ev.  136.  Here  the 
damages  were  duly  claimed ;  they  occurred  in  the  use  of 
reasonable  means  on  the  part  of  the  plaintiffs  to  repossess 
themselves  of  their  property,  and  were  occasioned  by  the 
wrongful  act  of  the  defendant. 

Judgment  affirmed. 

ELLIS   v.   HILTON. 

Michigan,  1889.     78  Mich.  150. 

Long,  J.  This  is  an  action  to  recover  damages  against 
the  defendant  for  negligently  placing   a  stake   in  a   public 


ELLIS  v.  HILTON.  467 

street  in  Traverse  City,  which  plaintiff's  horse  ran  against, 
and  was  injured.  It  was  conceded  on  the  trial  by  counsel 
for  defendant  that  the  horse  of  plaintiff  was  so  injured  that  it 
was  entirely  worthless.  Plaintiff  claimed  damages,  not  only 
for  the  full  value  of  the  horse,  but  also  for  what  he  expended 
in  attempting  to  effect  a  cure,  and  on  the  trial  stated  to  the 
court  that  plaintiff  was  entitled  to  recover  a  reasonable  ex- 
pense in  trying  to  cure  the  horse  before  it  was  decided  that 
she  was  actually  worthless.  The  court  ruled,  however,  that 
the  damages  could  not  exceed  the  value  of  the  animal.  A 
claim  is  made  by  the  declaration  for  moneys  expended  in 
trying  to  effect  a  cure  of  the  horse  after  the  injury.  Upon 
the  trial  the  plaintiff  testified  that  he  put  the  horse,  after  the 
injury,  into  the  hands  of  a  veterinary,  and  paid  him  $35  for 
cure  and  treatment.  On  his  cross-examination,  he  also  testi- 
fied that  the  veterinary  said  "  there  was  hopes  of  curing  her, 
if  the  muscles  were  not  too  badly  bruised.  He  did  n't  say 
he  could  cure  her.  He  thought  there  was  a  chance  he 
might." 

Dr.  DeCow,  the  veterinary,  was  called,  and  testified,  as  to 
the  injur}-,  that  the  stake  entered  the  breast  of  the  horse,  on 
the  left  side,  about  six  inches  ;  that  the  muscles  were  bruised, 
and  the  left  leg  perfectly  helpless.  He  got  the  wound  healed, 
but  on  account  of  the  severe  bruise  of  the  muscles  the  leg 
became  paralyzed  and  useless.  On  being  asked  whether  he 
thought  she  could  be  helped  when  he  first  saw  her,  he  stated 
that  he  did  not  know  but  she  might ;  that  she  might  be  helped, 
and  kept  for  breeding  purposes,  and  be  of  some  value. 

It  is  evident  from  the  testimony  that  the  plaintiff  acted  in 
good  faith  in  attempting  the  cure,  and  under  the  belief  that 
the  mare  could  be  helped,  and  be  of  some  value.  The  court 
below,  however,  seems  to  have  based  its  ruling  that  no 
greater  damages  could  be  recovered  than  the  value  of  the 
animal,  and  that  these  moneys  expended  in  attempting  a 
cure  could  not  be  recovered,  upon  the  ground  that  the 
defendant  was  not  consulted  in  relation  to  the  matter  of 
the  attempted  cure.      Whatever  damages  the  plaintiff  sus- 


468  CASES   ON  DAMAGES. 

tained  were  occasioned  by  the  negligent  conduct  of  the 
defendant,  and  recovery  in  such  cases  is  always  permitted 
for  such  amount  as  shall  compensate  for  the  actual  loss.  If 
the  horse  had  been  killed  outright,  the  only  loss  would  have 
been  its  actual  value.  The  horse  was  seriously  injured  ;  but 
the  plaintiff,  acting  in  good  faith,  and  in  the  belief  that  she 
might  be  helped  and  made  of  some  value,  expended  this  $35 
in  care  and  medical  treatment.  He  is  the  loser  of  the  actual 
value  of  the  horse,  and  what  he  in  good  faith  thus  expended. 
He  is  permitted  to  recover  the  value,  but  cut  off  from  what 
he  has  paid  out.     This  is  not  compensation. 

Counsel  for  defendant  contends  that  such  damages  cannot 
exceed  the  actual  value  of  the  property  lost,  because  the  loss 
or  destruction  is  total.  There  may  be  cases  holding  to  this 
rule  ;  but  it  seems  to  me  the  rule  is  well  stated,  and  based 
upon  good  reason,  in  Watson  v.  Bridge,  14  Me.  201,  in  which 
the  court  says  :  "  Plaintiff  is  entitled  to  a  fair  indemnity  for 
his  loss.  He  has  lost  the  value  of  his  horse,  and  also  what 
he  has  expended  in  endeavoring  to  cure  him.  The  jury 
having  allowed  this  part  of  his  claim,  it  must  be  understood 
that  it  was  an  expense  prudently  incurred,  in  the  reasonable 
expectation  that  it  would  prove  beneficial.  It  was  incurred, 
not  to  aggravate,  but  to  lessen  the  amount  for  which  the 
defendants  might  be  held  liable.  Had  it  proved  successful, 
they  would  have  had  the  benefit  of  it.  As  it  turned  out 
otherwise,  it  is  but  just,  in  our  judgment,  that  they  should 
sustain  the  loss."  In  Murphy  v.  McGraw,  41  N.  W.  Rep. 
917,  it  appeared  on  the  trial  that  the  horse  was  worthless  at 
the  time  of  purchase  b}-  reason  of  a  disease  called  "  eczema." 
The  court  charged  the  jury  that  if  the  plaintiff  was  led  by 
defendant  to  keep  on  trying  to  cure  the  horse  the  expense 
thereof  would  be  chargeable  to  the  defendant,  as  would  also 
be  the  case  if  there  were  any  circumstances,  in  the  judg- 
ment of  the  jury,  which  rendered  it  reasonable  that  he  should 
keep  on  trying  as  long  as  he  did  to  effect  the  cure.  The 
plaintiff  recovered  for  such  expense,  and  on  the  hearing  here 
the  charge  of  the  trial  court  was  held  correct. 


LAWRENCE   v.   HAGERMAN.  469 

It  is  a  question,  under  the  circumstances,  for  the  jur}-  to 
determine  whether  the  plaintiff  acted  in  good  faith,  and  upon 
a  reasonable  belief  that  the  horse  could  be  cured,  or  made  of 
some  value,  if  properly  taken  care  of;  and  the  trial  court  was 
in  error  in  withdrawing  that  part  of  the  case  from  them. 
Such  damages,  of  course,  must  always  be  confined  within 
reasonable  bounds,  and  no  one  would  be  justified,  under  any 
circumstances,  in  expending  more  than  the  animal  was  worth 
in  attempting  a  cure.  This  is  the  only  error  we  need  notice. 
The  judgment  of  the  court  below  must  be  reversed,  with  costs, 
and  a  new  trial  ordered. 


LAWRENCE  v.  HAGERMAN. 

Illinois,  1870.     56  111.  68. 

Scott,  J.1  The  action  is  founded  in  tort,  for  maliciously 
suing  out  the  process  of  a  court.  The  averment  in  the  dec- 
laration is,  that  the  appellant  "  wrongfully,  unjustly,  and 
maliciously,  and  without  probable  cause  therefor,"  sued  out 
a  writ  of  attachment  under  the  attachment  act,  and  with  a 
malicious  and  wrongful  purpose  caused  the  same  to  be  levied 
on  the  goods  and  chattels  of  the  appellee.  It  is  alleged  that, 
by  reason  of  the  premises,  the  appellee  sustained  special 
damage  in  the  depreciation  of  the  value  of  the  property  levied 
on,  and  in  the  expenditure  of  large  sums  of  money  in  the 
defence  of  the  action,  and,  as  general  damage,  that  his  busi- 
ness was  broken  up,  his  credit  and  reputation  impaired  and 
destroyed. 

The  testimony  offered  to  which  objections  were  interposed 
tended  to  show,  negativeby  at  least,  that  there  was  no  proba- 
ble cause  for  suing  out  the  writ.  This  was  a  material  aver- 
ment and  it  was  necessary  to  be  proven.  The  evidence 
offered  for  that  purpose  was  legitimate  and  proper. 

1  Fart  of  the  opinion  is  omitted. 


470  CASES  ON  DAMAGES. 

The  main  objection  taken  is  to  the  evidence  offered  to  estab- 
lish the  measure  of  damages.  It  seems  to  us  that  the  aver- 
ments in  the  declaration  are  broad  and  comprehensive  enough 
to  admit  of  evidence  of  all  the  injuries  sustained  in  conse- 
quence of  the  wrongful  act  alleged.  For  the  purpose  of  esti- 
mating the  extent  and  magnitude  of  the  injury,  the  court 
permitted  the  appellee  to  introduce  evidence  of  the  nature, 
character,  and  amount  of  business  transacted  at  and  before 
the  date  of  the  wrongful  levy,  and  also  evidence  of  the  com- 
plete destruction  of  that  business,  and  of  the  extent  to  which 
the  credit  and  financial  reputation  of  the  appellee  were  im- 
paired, and  also  evidence  of  the  actual  loss  of  the  stock  levied 
on,  and  of  the  expenses  incurred  in  and  about  the  defence  of 
the  suit.  No  reason  is  perceived  why  these  facts  do  not  con- 
stitute proper  elements  for  the  consideration  of  a  jury  in  esti- 
mating the  damages  occasioned  by  the  tortious  act  of  the 
appellant.  The  evidence  was  pertinent  to  the  issue  made  by 
the  pleadings,  and  the  issue  stated  was  broad  enough  to  admit 
the  proof. 

In  actions  on  the  case  the  party  injured  may  recover  from 
the  guilty  party  for  all  the  direct  and  actual  damages  of  the 
wrongful  act  and  the  consequential  damages  flowing  there- 
from. The  injured  party  is  entitled  to  recover  the  actual 
damages  and  such  as  are  the  direct  and  natural  consequence 
of  the  tortious  act. 

In  this  instance  the  amount  of  money  actually  paid  out  in 
and  about  the  defence  of  the  suit,  and  the  depreciation  of  the 
value  of  the  stock  on  which  the  wrongful  levy  is  alleged  to 
have  been  made,  are  not  the  only  damages  sustained,  if  the 
appellant  wrongfully,  unjustly,  and  maliciously  and  without 
probable  cause  sued  out  the  writ  of  attachment,  and  caused 
the  same  to  be  levied  in  the  manner  charged.  The  business 
of  the  appellee  had  hitherto  been  prosperous,  his  credit  and 
financial  reputation  good,  and  all  were  destroyed  by  the  mali- 
cious acts  of  the  appellant,  if  it  be  conceded  that  he  was 
guilty  as  alleged.  It  cannot  be  said  that  the  law  will  afford 
no  redress  for  the  destruction  of  financial  credit  and  reputa* 


MORSE  v.  HUTCHINS.  471 

tion,  or  mete  out  no  measure  of  punishment  to  the  guilty 
party  who  wantonly  and  maliciously  destroys  them.  The 
reputation  and  credit  of  a  man  in  business  is  of  great  value, 
and  is  as  much  within  the  protection  of  the  law  as  property 
or  other  valuable  rights.  And  if  it  be  true  that  the  appel- 
lant has  maliciously,  by  his  wrongful  act,  destroyed  the  busi- 
ness, credit,  and  reputation  of  the  appellee,  the  law  will 
require  him  to  make  good  the  loss  sustained.  Chapman  v. 
Kirby,   49  111.  211. 

The  instructions  given  for  the  appellee  announce  these 
principles  with  sufficient  accuracy.  The  jury  were  correctly 
told  that  in  estimating  the  damages  they  might  take  into  con- 
sideration any  injury  shown  by  the  evidence  that  the  appellee 
sustained  in  his  business  and  reputation,  together  with  the 
losses  actually  sustained  by  the  wrongful  suing  out  of  the 
writ  of  attachment.  The  jury  were  also  instructed  that  the}' 
Were  not  confined  to  the  actual  damages,  if  the  wrongful  acts 
were  wantonly  and  maliciously  committed,  but  the}'  might 
give  exemplary  damages.  Such  is  the  well-established  rule 
p>f  the  law. 


MORSE  v.  HUTCHINS. 

Massachusetts,  18G9.     102  Mass.  439. 

Tort  for  deceit  in  making  false  and  fraudulent  representa- 
tions to  the  plaintiff  touching  the  business  and  profits  of  a 
6rm  of  which  the  defendant  was  a  member,  and  thereb}'  in- 
ducing the  plaintiff  to  buy  the  interest  of  the  defendant  in 
the  stock  and  good  will  of  the  firm. 

Gray,  J.1  The  rule  of  damages  was  rightly  stated  to  the 
jury.  It  is  now  well  settled  that,  in  actions  for  deceit  or 
breach  of  warranty,  the  measure  of  damages  is  the  difference 
between  the  actual  value  of  the  property  at  the  time  of  the 
purchase,  and  its  value  if  the  property  had  been  what  it  was 

1  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


472  CASES  ON  DAMAGES. 

represented  or  warranted  to  be.  Stiles  v.  White,  11  Met. 
35G  ;  Tuttle  v.  Brown,  4  Gray,  457 ;  Whitmore  v.  South  Bos- 
ton Iron  Co.,  2  Allen,  52;  Fisk  v.  Hicks,  11  Foster,  535; 
Woodward  v.  Thacher,  21  Verm.  580  ;  Muller  v.  Eno,  4  Ker- 
nan,  597  ;  Sherwood  v.  Sutton,  5  Mason,  1  ;  Loder  v.  Kekule, 
3  C.  B.  (n.  s.)  128  ;  Dingle  v.  Hare,  7  C.  B.  (n.  s.)  145  ;  Jones 
v.  Just,  Law  Rep.  3  Q.  B.  197.  This  is  the  only  rule  which 
will  give  the  purchaser  adequate  damages  for  not  having  the 
thing  which  the  defendant  undertook  to  sell  him.  To  allow 
to  the  plaintiff  (as  the  learned  counsel  for  the  defendant 
argued  in  this  case)  only  the  difference  between  the  real  value 
of  the  property  and  the  price  which  he  was  induced  to  pay 
for  it  would  be  to  make  any  advantage  lawfully  secured  to 
the  innocent  purchaser  in  the  original  bargain  inure  to  the 
benefit  of  the  wrong-doer ;  and,  in  proportion  as  the  original 
price  was  low,  would  afford  a  protection  to  the  party  who  had 
broken,  at  the  expense  of  the  party  who  was  ready  to  abide 
by,  the  terms  of  the  contract.  The  fact  that  the  property 
sold  was  of  such  a  character  as  to  make  it  difficult  to  ascer- 
tain with  exactness  what  its  value  would  have  been  if  it  had 
conformed  to  the  contract  affords  no  reason  for  exempting 
the  defendant  from  an}7  part  of  the  direct  consequences  of  his 
fraud.  And  the  value  may  be  estimated  as  easily  in  this 
action  as  in  an  action  against  him  for  an  entire  refusal  to 
perform  his  contract. 

Exceptions  overruled. 


SMITH  v.  BOLLES. 

Supreme  Court  of  the  United  States,  18S9.     132  U.  S.  125. 

Fuller,  C.J.  The  bill  of  exceptions  states  that  the  court 
charged  the  jury  "  as  to  the  law  by  which  the  jury  were  to  be 
governed  in  the  assessment  of  damages  under  the  issues  made 
in  the  case,"  that  "  the  measure  of  recovery  is  generally  the 
difference   between   the   contract   price   and  the  reasonable 


SMITH  v.  BOLLES.  473 

market  value,  if  the  property  had  been  as  represented  to  be, 
or  in  case  the  property  or  stock  is  entirely  worthless,  then  its 
value  is  what  it  would  have  been  worth  if  it  had  been  as 
represented  b}*  the  defendant,  and  as  may  be  shown  in  the 
evidence  before  you." 

In  this  there  was  error.  The  measure  of  damages  was  not 
the  difference  between  the  contract  price  and  the  reasonable 
market  value  if  the  property  had  been  as  represented  to  be, 
even  if  the  stock  had  been  worth  the  price  paid  for  it ;  nor  if 
the  stock  were  worthless,  could  the  plaintiff  have  recovered 
the  value  it  would  have  had  if  the  property'  had  been  equal 
to  the  representations.  What  the  plaintiff  might  have  gained 
is  not  the  question,  but  what  he  had  lost  by  being  deceived 
into  the  purchase.  The  suit  was  not  brought  for  breach  of 
contract.  The  gist  of  the  action  was  that  the  plaintiff  was 
fraudulently  induced  by  the  defendant  to  purchase  stock  upon 
the  faith  of  certain  false  and  fraudulent  representations,  and 
so  as  to  the  other  persons  on  whose  claims  the  plaintiff  sought 
to  recover.  If  the  jury  believed  from  the  evidence  that 
the  defendant  was  guilty  of  the  fraudulent  and  false  repre- 
sentations alleged,  and  that  the  purchase  of  stock  had 
been  made  in  reliance  thereon,  then  the  defendant  was 
liable  to  respond  in  such  damages  as  naturally  and  proxi- 
mately resulted  from  the  fraud.  He  was  bound  to  make 
good  the  loss  sustained,  such  as  the  moneys  the  plaintiff  had 
paid  out  and  interest,  and  am-  other  outlay  legitimately  at- 
tributable to  defendant's  fraudulent  conduct ;  but  this  liability 
did  not  include  the  expected  fruits  of  an  unrealized  specu- 
lation. The  reasonable  market  value,  if  the  property"  had 
been  as  represented,  afforded,  therefore,  no  proper  element 
of  recovery. 

Nor  had  the  contract  price  the  bearing  given  to  it  by  the 
court.  What  the  plaintiff  paid  for  the  stock  was  properly  put 
in  evidence,  not  as  the  basis  of  the  application  of  the  rule  in 
relation  to  the  difference  between  the  contract  price  and  the 
market  or  actual  value,  but  as  establishing  the  loss  he  had 
sustained  in  that  particular.    If  the  stock  had  a  value  in  fact, 


474  CASES   ON  DAMAGES. 

that  would  necessariby  be  applied  in  reduction  of  the  dam- 
ages. "The  damage  to  be  recovered  must  always  be  the 
natural  and  proximate  consequence  of  the  act  complained 
of,"  says  Mr.  Greenleaf,  vol.  ii.  §  256;  and  "the  test  is," 
adds  Chief  Justice  Beasle}',  in  Crater  v.  Binninger,  33  N.  J. 
Law  (4  Vroom),  513,  518,  "that  those  results  are  proximate 
which  the  wrong-doer  from  his  position  must  have  contem- 
plated as  the  probable  consequence  of  his  fraud  or  breach  of 
contract."  In  that  case,  the  plaintiff  had  been  induced 
by  the  deceit  of  the  defendant  to  enter  into  an  oil  specu- 
lation, and  the  defendant  was  held  responsible  for  the 
moneys  put  into  the  scheme  by  the  plaintiff  in  the  ordinary 
course  of  the  business,  which  monej'S  were  lost,  less  the 
value  of  the  interest  which  the  plaintiff  retained  in  the  prop- 
ert}r  held  by  those  associated  in  the  speculation.  And  see 
Home  v.  Walton,  117  Illinois,  130;  Same  v.  Same,  117 
Illinois,  141  ;  Slingerland  v.  Bennett,  66  N.  Y.  611 ;  Schwa- 
backer  v.  Riddle,  84  Illinois,  517;  Fitzsimmons  v.  Chipman, 
37  Mich.  139. 

We  regard  the  instructions  of  the  court  upon  this  subject 
as  so  erroneous  and  misleading  as  to  require  a  reversal  of  the 
judgment.  The  five  causes  of  action  covered  the  purchase  of 
nine  thousand  five  hundred  and  twentj'-five  shares  of  stock, 
for  which  $16,050  in  the  aggregate  had  been  paid.  The 
plaintiff  did  not  withdraw  either  of  his  five  counts,  or  request 
the  court  to  direct  the  jury  to  distinguish  between  them.  The 
verdict  was  a  general  one  for  $8140,  and,  while  it  may  be 
quite  probable  that  the  jur}T  did  in  fact,  as  counsel  for  de- 
fendant in  error  contends,  award  to  the  plaintiff,  under  his 
first  cause  of  action,  the  sum  he  had  paid  for  the  shares  he 
had  purchased  himself  and  interest,  we  cannot  hold  this  as 
matter  of  law  to  have  been  so ;  nor  can  we  determine  what 
influence  the  erroneous  advice  of  the  learned  judge  may  have 
had  upon  the  deliberations  of  the  jury. 

Other  errors  are  assigned,  which  we  think  it  would  sub- 
serve no  useful  purpose  to  review.  They  involve  rulings,  the 
exceptions  to  which  were  not  so  clearly  saved  as  might  have 


SMITH  v.  BOLLES.  475 

been  wished,  had  the  disposal  of  this  case  turned  upon  them, 
and  which  will  not  probably,  in  the  care  used  upon  another 
trial,  be  repeated  precisely  as  now  presented. 
For  the  error  indicated, 

The  judgment  is  reversed  and  the  cause  remanded  with 
a  direction  to  grant  a  new  trial.1 

1  "  The  damage  to  be  recovered  by  the  plaintiff  is  the  loss  which  he  sus- 
tained by  acting  on  the  representations  of  the  defendants.  That  action  was 
taking  the  shares.  Before  he  was  induced  to  buy  the  shares,  he  had  the 
£4000  in  his  pocket.  The  day  when  the  shares  were  allotted  to  him, 
which  was  the  consequence  of  his  action,  he  paid  over  that  £4000,  and  he 
got  the  shares ;  and  the  loss  sustained  by  him  in  consequence  of  his  acting 
on  the  representations  of  the  defendants  was  having  the  shares  instead  of 
having  in  his  pocket  the  £4000.  The  loss,  therefore,  must  be  the  differ- 
ence between  his  £4000  and  the  then  value  of  the  shares."  Cotton,  L.J., 
in  Peek  v.  Derry,  37  Ch.  Div.  541,  591. 

"  His  actual  loss  does  not  include  the  extravagant  dreams  which  proved 
illusory,  but  the  money  he  has  parted  with  without  receiving  an  equivalent 
therefor."    Williams,  J.,  in  High  v.  Berret,  148  Pa.  261,  264  (1892). 


CHAPTER  XIV. 

DAMAGES  IN    CERTAIN   ACTIONS  ON   CONTRACTS. 


BROWN  v.   MULLER. 

Exchequer,  1872.    L.  R.  7  Ex.  319. 

Kelly,  C.B.1  I  should  not  have  felt  much  doubt  as  to 
what  should  be  the  measure  of  damages  in  this  case,  but  for 
the  hesitation  expressed  during  the  argument  by  my  brother 
Martin  ;  a  hesitation  which,  however,  I  understand  now  to 
be  removed.  The  defendant  undertook  in  this  case  to  deliver 
500  tons  of  iron  during  the  months  of  September,  October, 
and  November,  1871,  in  about  equal  portions;  that  is,  at  the 
rate  of  about  166  tons  in  each  month;  and  he  has  failed  to 
deliver  altogether.  Now  the  proper  measure  of  damages  is 
that  sum  which  the  purchaser  requires  to  put  himself  in  the 
same  condition  as  if  the  contract  had  been  performed.  This 
being  the  general  principle  of  assessment,  we  find  that  the 
defendant  delivered  no  iron  in  September,  and  on  the  30th 
of  that  month,  I  think,  the  plaintiff  was  entitled  to  receive, 
as  damages,  the  difference  on  that  day  between  the  contract 
and  market  price  of  166  tons.  No  other  satisfactory  prin- 
ciple can  be  suggested.  The  plaintiff  might  have  resold  this 
amount  of  iron  to  a  sub-purchaser,  and  to  satisfy  this  sub- 
contract might  have  bought  at  the  then  market  price;  or  else 
must  have  paid  the  sub-purchaser  the  difference  ;  and  in  either 
case  would  be  entitled  to  receive  it  from  the  defendant.  Then, 
when  the  31st  of  October  arrives,  the  same  state  of  things 
recurs  as  to  the  second  instalment  of  iron  to  be  delivered ; 

1  Martin  and  Channell,  BB.,  delivered  concurring  opinions. 


BROWN  v.  MULLER.  477 

and  again  the  damages  will  be  the  difference  between  the 
contract  and  market  prices  on  that  da}r.  And  a  similar 
calculation  must  be  made  with  reference  to  the  end  of 
November.  Therefore  the  plaintiff  will  be  entitled  to 
recover,  altogether,  the  sum  of  the  three  differences  at 
the  end   of  the  three  months  respectively. 

It  has  been  argued  with  much  ingenuity  that  the  damages 
ought  to  be  estimated  at  a  lower  figure  if  it  appear  that  when 
the  defendant  announced  his  intention  of  not  delivering,  or  at 
all  events  when  the  first  breach  took  place,  and  it  became 
apparent  that  the  contract  could  never  be  performed  at  all, 
the  plaintiff  might  have  entered  into  a  new  contract  to  the 
same  effect  as  the  old  one  for  the  months  of  October  and 
November  on  as  favorable  terms ;  and  if  the  plaintiff,  on 
hearing  he  would  never  get  delivery,  was  bound  to  go  and 
obtain,  if  he  could,  the  new  contract  suggested,  then,  no 
doubt,  assuming  that  he  might  have  made  such  a  contract, 
the  damages  ought  to  be  limited  to  his  loss  at  that  time. 
But  there  was,  in  my  opinion,  no  such  obligation.  He  is 
not  bound  to  enter  into  such  a  contract,  which  might  be  either 
to  his  advantage  or  detriment,  according  as  the  market  might 
fall  or  rise.  If  it  fell,  the  defendants  might  fairly  say  that 
the  plaintiff  had  no  right  to  enter  into  a  speculative  contract, 
and  insist  that  he  was  not  called  upon  to  pay  a  greater  differ- 
ence than  would  have  existed  had  the  plaintiff  held  his  hand. 
Or  again,  by  such  a  course,  the  plaintiff  might  be  seriously 
injured  and  yet  have  no  remedy.  Suppose,  for  example,  his 
new  contract  was  with  a  person  who  proved  insolvent.  lie 
would,  in  that  case,  be  without  redress  ;  he  would  have  lost 
his  former  contract,  and  his  new  one  would  turn  out  worthless. 
In  either  event,  therefore,  I  do  not  think  the  plaintiff  could  be 
called  upon  to  enter  into  a  fresh  contract.  If  he  did,  and 
thus  obtained  an  advantage,  he  no  doubt  might  save  the 
defendant  from  some  damages.  Rut  if  he  should  suffer  a  loss, 
as  by  the  insolvency  of  the  new  contractor,  he  could  not  make 
the  defendant  answer  for  it.  And  if  it  should  happen  that 
he  might  have  done  better  for  the  defendant  by  waiting  and 


478  CASES  ON  DAMAGES. 

making  no  speculative  contract,  the  defendant  would  in  his 
turn  have  a  fair  right  to  complain  that  his  loss  had  not  been 
mitigated  as  far  as  possible. 

The  case  of  Frost  r.  Knight,  L.  R.  7  Ex.  Ill,  has  been  referred 
to  as  showing  that  there  is  a  difference  between  cases  where  the 
contract  is  treated  as  still  subsisting  and  where  it  is  treated 
as  at  an  end.  Now  the  plaintiff  might,  if  he  had  so  elected, 
have  treated  the  contract  as  at  an  end  when  the  defendant 
announced  his  intention  to  break  it.  But  that  is  a  matter  of 
election  on  the  plaintiff's  part,  and  even  although  he  had 
elected  thus  to  treat  the  contract,  yet  in  considering  the 
question  of  damages  they  would  still  be  estimated  with  refer- 
ence to  the  times  at  which  the  contract  ought  to  have  been 
performed,  that  is,  in  this  case,  at  the  end  of  the  months  of 
September,  October,  or  November.  The  damages  should 
therefore  be  assessed  on  the  principle  I  have  indicated,  and 
the  rule  made  absolute  to  reduce  the  damages  to  £109  is. 


ROPER  v.  JOHNSON. 

Common  Pleas,  1873.     L.  R.  8  C.  P.  167. 

Brett,  J.1  This  is  an  action  brought  upon  a  contract  for 
the  purchase  and  sale  of  marketable  goods,  whereby  the 
defendant  undertook  to  deliver  them  in  certain  quantities  at 
certain  specified  times  ;  and  the  action  is  brought  for  the 
non-performance  of  that  contract.  Now,  in  ordinary  cases, 
the  contract  is  to  deliver  the  goods  on  a  specified  day.  and 
there  is  no  breach  until  that  day  has  passed.  In  the  case-of 
marketable  goods,  the  rule  as  to  damages  for  breach  of  the 
contract  to  deliver  is,  the  difference  between  the  contract 
price  and  the  market  price  on  the  day  of  breach.  That  is 
perfectly  right  when  the  day  for  performance  and  the  day  of 
breach  are  the  same.  Another  form  of  contract  is,  as  in 
Brown  v.  Muller,  Law  Rep.  7  Ex.  319,  to  deliver  goods  in 

1  Keating  aud  Gkove,  JJv  delivered  concurring  opinions. 


ROPER  v.  JOHNSON.  479 

certain  quantities  on  different  days.  The  effect  of  the  judg- 
ment in  that  case  is  that,  the  contract  being  wholly  unper- 
formed, there  is  a  breach  —  a  partial  breach  —  on  each  of 
the  specified  days  ;  such  breaches  occurring  on  the  same  days 
as  the  days  appointed  for  the  performance  of  the  several  por- 
tions of  the  contract.  But  the  case  of  Hochster  v.  De  la  Tour, 
2  E.  &  B.  678  ;  22  L.  J.  (Q.  B.)  455,  introduced  this  qualifica- 
tion, that,  where  one  party,  before  the  day  for  the  perform- 
ance of  the  contract  has  arrived,  declares  that  he  will  not 
perform  it,  the  other  ma}7  treat  that  as  a  breach.  That  com- 
plication has  arisen  here :  the  contract  being  for  the  delivery 
of  the  goods  on  future  specified  days,  the  defendant  has  be- 
fore the  time  appointed  for  the  last  delivery  declared  that  he 
will  not  perform  the  contract,  and  the  plaintiffs  have  elected 
to  treat  that  as  a  breach  and  to  bring  their  action. 

Now,  to  entitle  a  plaintiff  to  recover  damages  in  an  action 
upon  a  contract,  he  must  show  a  breach,  and  that  he  has  sus- 
tained damage  by  reason  of  that  breach.  These  two  are  quite 
distinct.  All  that  Hochster  v.  De  la  Tour  decided  was  this, 
that,  if  before  the  day  stipulated  for  performance  the  defend- 
ant declares  that  he  will  not  perform  it,  the  plaintiff  ma}-  treat 
that  declaration  as  a  breach  of  the  contract,  and  sue  for  it.  Now 
comes  the  question  whether  in  such  a  case  as  this  there  is  to 
be  a  diffei-ent  rule  as  to  proof  of  the  amount  of  damage  which 
the  plaintiff  has  suffered.  The  general  rule  as  to  damages 
for  the  breach  of  a  contract  is,  that  the  plaintiff  is  to  be  com- 
pensated for  the  difference  of  his  position  from  what  it  would 
have  been  if  the  contract  had  been  performed.  In  the  ordi- 
nary case  of  a  contract  to  deliver  marketable  goods  on  a 
given  day,  the  measure  of  damages  would  be  the  difference 
between  the  contract  price  and  the  market  price  on  that  da}'. 
Now,  although  the  plaintiff  may  treat  the  refusal  of  the 
defendant  to  accept  or  to  deliver  the  goods  before  the  da}r  of 
performance  as  a  breach,  it  by  no  means  follows  that  the 
damages  are  to  be  the  difference  between  the  contract  price 
and  the  market  price  on  the  day  of  the  breach.  It  appears 
to  me  that  what  is  laid  down  by  Cockburn,  C.J.,  in  Frost  v. 


480  CASES  ON  DAMAGES. 

Knight,  in  the  Exchequer  Chamber,  Law  Rep.  7  Ex.  Ill, 
involves  the  very  distinction  which  I  am  endeavoring  to  lay 
down,  viz.,  that  the  election  to  take  advantage  of  the  repudia- 
tion of  the  contract  goes  only  to  the  question  of  breach,  and 
not  to  the  question  of  damages ;  and  that,  when  you  come 
to  estimate  the  damages,  it  must  be  by  the  difference  be- 
tween the  contract  price  and  the  market  price  at  the  day  or 
days  appointed  for  performance,  and  not  at  the  time  of 
breach.  Now,  how  does  the  Chief  Justice  deal  with  the 
matter?  He  deals  first  with  the  case  of  an  action  brought 
after  the  day  for  performance.  He  says  :  "  The  promisee,  if 
he  pleases,  may  treat  the  notice  of  intention  as  inoperative, 
and  await  the  time  when  the  contract  is  to  be  executed,  and 
then  hold  the  other  party  responsible  for  all  the  consequences 
of  non-performance  ;  but,  in  that  case,  he  keeps  the  contract 
alive  for  the  benefit  of  the  other  party  as  well  as  his  own ; 
he  remains  subject  to  all  his  own  obligations  and  liabilities 
under  it,  and  enables  the  other  part}'  not  onl}-  to  complete  the 
contract,  if  so  advised,  notwithstanding  his  previous  repudia- 
tion of  it,  but  also  to  take  advantage  of  any  supervening  cir- 
cumstance which  would  justify  him  in  declining  to  complete  it." 
He  then  treats  of  the  other  case:  "On  the  other  hand,  the 
promisee  may,  if  he  thinks  proper,  treat  the  repudiation  of  the 
other  party  as  a  wrongful  putting  an  end  to  the  contract, 
and  may  at  once  bring  his  action  as  on  a  breach  of  it ;  and  in 
such  action  he  will  be  entitled  to  such  damages  as  would 
have  arisen  from  the  non-performance  of  the  contract  at  the 
appointed  time,"  that  is,  from  non-performance  of  the  contract 
at  the  time  or  times  appointed  for  its  performance.  That 
clearly  negatives  Mr.  Herschell's  argument,  and  gives  the 
rule  for  the  assessment  of  damages  in  the  way  I  have  stated, 
viz.,  that  the}T  must  be  such  as  the  plaintiffs  would  have  sus- 
tained at  the  da}-  appointed  for  performance  of  the  contract. 
Then  he  goes  on  and  shows  the  real  distinction  between  the 
cases  he  has  put, —  "subject,  however,  to  abatement  in 
respect  of  an}'  circumstances  which  may  have  afforded  him 
the  means  of  mitigating  his  loss."     He  says  further:    "The 


ROPER  v.  JOHNSON.  481 

contract  having  been  thus  broken  by  the  promisor,  and  treated 
as  broken  by  the  promisee,   performance  at  the  appointed 
time  becomes  excluded,    and  the    breach  by  reason  of  the 
future  non-performance   becomes  virtually   involved  in    the 
action  as  one  of  the  consequences  of  the  repudiation  of  the 
contract ;  and  the  eventual  non-performance  may  therefore, 
by  anticipation,  be  treated  as  a  cause  of  action,  and  damages 
be  assessed  and  recovered  in  respect  of  it,  though  the  time 
for  performance  may  yet  be  remote.     It  is  obvious  that  such 
a  course  must  lead  to  the  convenience  of  both  parties  ;    and 
though  we    should    be    unwilling  to    found    our   opinion   on 
grounds  of  convenience  alone,  yet  the  latter  tend  strongly 
to  support  the  view  that  such  an  action  ought  to  be  admitted 
and  upheld.     By  acting  on  such  a  notice  of  the  intention  of 
the  promisor,  and  taking  timely  measures,  the  promisee  may  in 
many  cases  avert,  or  at  all  events  materially  lessen,  the  inju- 
rious effects  which  would  otherwise  flow  from  the  non-fulfil- 
ment  of  the  contract;    and,   in  assessing  the  damages  for 
breach  of  performance,  a  jury  will  of  course  take  into  account 
whatever  the  plaintiff  has  done,  or  has   had  the  means  of 
doing,  and,  as  a  prudent  man,  ought  in  reason  to  have  done, 
whereby  his  loss  has  been  or  would  have  been  diminished." 
He  uses  the  very  term  I  used  in  the  course  of  the  argument,  and 
which  Mr.  Herscbell  objected  to,  viz.,  "  ought  to  have  done." 
It  seems  to  me  to  follow  from  that  ruling  that  the  plaintiffs  here 
did  all  they  were  bound  to  do  when  they  proved  what  was  the 
difference  between  the  contract  price  and  the  market  price 
at  the  several  days  specified  for  the  performance  of  the  con- 
tract, and  that  prima  facie  that  is  the  proper  measure  of 
damages  ;  leaving  it  to  the  defendant  to  show  circumstances 
which  would  entitle  him  to  a  mitigation.     No  such  circum- 
stances appeared  here  :    there  was  nothing  to  show  that  the 
plaintiffs  ought  to  have  or  could  have  gone  into  the  market,  — 
arising  market,  —  and  obtained  a  similar  contract.     But  I 
cannot  help  thinking  that  the  Chief  Justice's  judgment  in  the 
case  last  referred  to  goes  further,  and  says  in  effect  that  the 
plaintiffs  were  not  bound  to  attempt  to  get  a  new  contract 

31 


482  CASES  ON  DAMAGES. 

It  was  upon  precisely  the  same  argument  that  the  Chief 
Baron  in  Brown  v.  Muller,  Law  Rep.  7  Ex.  319,  decided 
against  Mr.  Herschell  that  the  plaintiff  there,  as  a  reasonable 
man,  was  not  bound  to  make  a  forward  contract.  Baron 
Martin  held  the  same,  though  apparently  with  some  reluc- 
tance :  but  no  doubt  is  expressed  in  the  judgment  of  Baron 
Channell.  If  we  had  been  altogether  without  authorhry,  I 
should  have  come  to  the  same  conclusion.  But  I  think  we 
are  bound  by  the  authority  of  Frost  v.  Knight,  and  Brown  v. 
Muller. 


ROTH  v.  TAYSEN. 

Queen's  Bench  Division,  1895 :  Court  of  Appeal,  1896.     73  L.  T. 
Rep.  628;  12  T.  L.  Rep.  211. 

Commercial  Cause  tried  by  Mathew,  J.  The  action  was 
brought  by  Messrs.  Louis  Roth  &  Co.  Limited,  of  London, 
against  the  defendants,  Grant  and  Grahame,  of  Aberdeen, 
for  damages  for  breach  of  contract  for  non-acceptance  of  a 
cargo  of  maize,  and  against  the  defendants,  Taj-sen,  Town- 
send  &  Co.,  of  London,  for  breach  of  contract,  or  breach 
of  warranty  to  make  a  contract. 

On  the  24th  May,  1893,  the  defendants  Taysen  &  Co.,  pur- 
porting to  act  for  and  on  account  of  the  defendants  Grant  & 
Co.,  signed  a  contract  note  for  the  sale  to  Grant  &  Co.,  of 
a  cargo  of  maize,  consisting  of  about  2800  tons,  at  the  price 
of  21s.  I0£d.  per  quarter  of  480  lb.,  to  be  shipped  for  the 
plaintiffs  per  the  steamer  Haverstoe,  expected  to  load  about 
the  15th  July,  from  a  port  or  ports  in  the  Argentine  Repub- 
lic and  (or)  Uruguay,  to  any  safe  port  in  the  United  King- 
dom, or  on  the  Continent  between  Bordeaux  and  Hamburg, 
both  included. 

The  ship  was  chartered  by  the  plaintiffs,  the  cargo  of 
maize  was  loaded,  and  the  ship  and  cargo  were  expected  to 
arrive  on  or  about  the  5th  Sept.  at  her  port  of  call  (St.  Vin- 
cent). 


ROTH   v.   TAYSEN.  483 

The  contract  note  having  been  signed  on  the  24th  May, 
the  buyers,  the  defendants,  Grant  &  Co.,  on  the  28th  May, 
sent  to  the  plaintiffs  a  telegram  repudiating  the  contract,  on 
the  ground  that  Taysen  &  Co.  had  no  authority  to  make  it  on 
their  behalf.  The  market  price  was  then  falling,  and  the 
buyers  adhered  to  their  position  and  refused  to  accept  deliv- 
ery of  the  maize,  and  after  some  correspondence  and  an 
unsuccessful  attempt  to  induce  the  buyers  to  go  to  arbitra- 
tion, the  plaintiffs,  on  the  24th  July,  brought  this  action. 

Upon  the  trial  of  the  action  the  learned  judge  found  that 
Taysen  &  Co.  had  authority  to  sign  the  contract  on  behalf  of 
Grant  &  Co.,  and  that  Grant  &  Co.  were  therefore  liable 
upon  the  contract.  The  question  as  to  the  amount  of  the 
damages  was  postponed,  and  that  was  the  sole  question  now 
argued. 

By  the  contract  note  payment  was  to  be  by  cash  in  London 
in  exchange  for  shipping  documents  on  or  before  arrival 
of  the  vessel  at  port  of  discharge,  which  was  Plymouth,  but 
in  no  case  later  than  fourteen  days  after  receipt  of  invoice, 
less  a  certain  discount ;  and  clause  6  of  the  conditions  and 
rules  indorsed  on  the  note  provided  that : 

"In  default  of  fulfilment  of  the  contract,  either  party,  at 
his  discretion,  shall,  after  giving  notice  in  writing,  have  the 
right  of  re-sale  or  re-purchase,  as  the  case  may  be,  and  the 
defaulter  shall  make  good  the  loss,  if  any,  by  such  re- 
purchase, or  re-sale  on  demand." 

If  the  cargo  had  been  re-sold  b}*  the  plaintiffs  about  the  29th 
or  30th  Ma}r,  the  date  of  the  repudiation  by  the  b^-ers,  the 
loss  would  have  been  Is.  a  quarter,  or  upon  the  whole  cargo 
about  £860,  including  brokerage.  If  the  cargo  had  been 
re-sold  about  the  24th  Juby,  the  date  when  the  plaintiffs 
brought  this  action,  the  loss  upon  the  contract  price  would 
have  been  about  £1557. 

The  prices  were  then  still  falling  and  were  likel}'  to  fall, 
but  the  plaintiffs  did  not  sell  until  the  5th  Sept.,  when  the 
cargo  arrived  at  port  of  call.  The}*  then  re-sold  the  cargo  at 
16s.  per  quarter,  the  best  price  obtainable,  and  the  loss  on 


484  CASES  ON  DAMAGES. 

the  contract  price  was  £3807  5s.  8d.,  and  the  plaintiffs  said 
they  were  entitled  to  recover  this  sum  as  damages.1 
The  plaintiffs  appealed  on  the  question  of  damages. 
Lord  Esher,  M.  R,  said,  as  regards  the  cross-appeal.2 
Then  as  regards  the  cross-appeal,  which  raised  the  question 
of  damages,  the  rule  was  that  when  there  was  a  repudiation 
of  a  contract  of  purchase  and  the  sale  of  goods  treated  as  a 
breach  the  difference  between  the  contract  price  and  the  mar- 
ket price  of  the  goods  on  the  date  the  breach  was  the  meas- 
ure of  damages,  subject  to  this,  that  if  the  date  of  the  breach 
was  not  the  day  of  delivery  another  rule  applied.     In  this 
case  the  repudiation  when  accepted  was  treated  as  a  breach 
of  the  contract  before  the  day  of  delivery,  and  the  damages 
would  not  be  the  difference  between  the  contract  price  and 
the  market  price  on  the  day  of  the  breach,  but  must  be 
assessed   by  the  jury  having  regard  to  the  future  day  of 
delivery.     But  this  latter  rule  was  qualified  by  this,  that  the 
plaintiffs,  who  had  treated  the  repudiation  as  a  breach,  were 
bound  to  do  what  was  reasonable  to  prevent  the  damages 
from  being  increased  against  the  defendants.     The  evidence 
was  that  the  market  had  been  steadily  falling  for  some  time, 
and  the  true  inference  was  that  there  was  a  strong  probabil- 
ity that  it  would  continue  to  fall.     Therefore,  the  plaintiffs 
did  not  act  reasonably  in  holding  the  cargo,  and  the  cross- 
appeal  failed. 

The  Lords  Justices  delivered  judgment  to  the  same  effect. 

1  Mathew,  J.,  gave  judgment  for  the  plaintiffs  for  £1557.     His  opin- 
ion is  omitted. 

2  Only  so  much  of  the  opinion  in  the  Court  of  Appeal  as  deals  with 
the  question  of  damages  is  given. 


KADISH  v.   YOUNG.  485 

KADIS H  v.   YOUNG. 
Illinois,  1883.     108  111.  170. 

Scholfield,  J.1  This  was  assumpsit,  by  appellees,  against 
appellants,  to  recover  damages  sustained  by  the  breach  of  an 
alleged  contract,  whereby,  on  the  15th  of  December,  1880, 
appellees  sold  to  appellants  100,000  bushels  of  No.  2  barley, 
at  one  dollar  and  twenty  cents  per  bushel,  to  be  delivered  to 
appellants,  and  paid  for  by  them,  at  such  time  during  the  month 
of  January,  1881,  as  appellees  should  elect.  Appellees  ten- 
dered to  appellants  warehouse  receipts  for  100,000  bushels  of 
No.  2  barley  on  the  12th  of  January,  1881,  but  appellants  re- 
fused to  receive  the  receipts  and  pay  for  the  barley.  Within 
a  reasonable  time  thereafter  appellees  sold  the  barley  upon 
the  market,  and  having  credited  appellants  with  the  proceeds 
thereof,  they  brought  this  suit,  and  on  the  trial  in  the  circuit 
court  they  recovered  the  difference  between  the  contract  price 
and  the  value  of  the  barley  in  the  market  on  the  day  it  was 
to  have  been  delivered  b}-  the  terms  of  the  contract.  Upon 
the  trial  appellants  denied  the  making  of  the  alleged  contract, 
that  they  were  partners,  or  that  an}-  purchase  of  the  barley 
was  made  for  their  joint  account;  and  they  also  contended, 
if  a  contract  was  shown,  then  that  on  the  next  day  after  it 
was  made  they  gave  notice  to  appellees  that  they  did  not  con- 
sider themselves  bound  by  the  contract,  and  they  would  not 
comply  with  its  terms,  and  evidence  was  given  tending  to 
sustain  this  contention.  The  questions  of  fact  contested  upon 
the  trial  in  the  circuit  court,  and  to  some  extent  discussed  in 
argument  here,  are,  by  the  judgment  of  the  Appellate  Court, 
conclusively  settled  against  appellants,  and  we  are  denied  the 
power  of  inquiring  whether  they  are  rightly  or  wrongly  settled. 
Bridge  Co.  v.  Comrs.,  101  111.  519;  Edgerton  v.  Weaver, 
105  111.  43;  R.  R.  v.  Morganstern,  106  111.  216;  Furnace 
Co.  v.  Abend,  107  111.  44. 

1  Part  of  the  opinion  is  omitted. 


486  CASES  ON  DAMAGES. 

The  questions  of  law  to  which  our  attention  has  been 
directed  by  the  arguments  of  counsel,  arise  upon  the  rulings 
of  the  circuit  judge  in  giving  and  refusing  instructions.  He 
thus  ruled,  among  other  things,  that  appellants,  by  giving 
notice  to  appellees  on  the  next  day  after  the  making  of  the 
contract  that  they  would  not  receive  the  barley  and  comply 
with  the  terms  of  the  contract,  did  not  create  a  breach  of 
such  contract  which  appellees  were  bound  to  regard,  or  impose 
upon  them  the  legal  obligation  to  resell  the  barley  on  the 
market,  or  make  a  forward  contract  for  the  purchase  of  other 
barley  of  like  amount  and  time  of  delivery,  within  a  reason- 
able time  thereafter,  and  credit  appellants  with  the  amount  of 
such  sale,  or  give  them  the  benefit  of  such  forward  contract, 
but  that  appellees  had  the  legal  right,  notwithstanding  such 
notice,  to  wait  until  the  day  for  the  delivery  of  the  barley  by 
the  terms  of  the  contract,  and  then,  upon  appellants'  failure 
to  receive  and  pay  for  it  on  its  being  tendered,  to  resell  it 
on  the  market,  and  recover  from  appellants  the  difference 
between  the  contract  price  of  the  barley  and  its  market  value 
on  the  day  it  was  to  have  been  delivered. 

That  in  ordinary  cases  of  contract  of  sale  of  personal 
property  for  future  delivery,  and  failure  to  receive  and  pay 
for  it  at  the  stipulated  time,  the  measure  of  damages  is  the 
difference  between  the  contract  price  and  the  market  or  cur- 
rent value  of  the  property  at  the  time  and  place  of  delivery, 
has  been  settled  by  previous  decisions  of  this  court  (see 
McNaught  v.  Dodson,  49  111.  446,  Larrabeeu.  Badger,  45  Id. 
440,  and  Saladin  v.  Mitchell,  Id.  79),  and  is  not  contested  by 
appellants'  counsel.  But  their  contention  is,  that  in  case  of 
such  contract  of  sale  for  future  delivery,  where,  before  the 
time  of  delivery,  the  buyer  gives  the  seller  notice  that  he  will 
not  receive  the  property  and  comply  with  the  terms  of  the 
contract,  this,  whether  the  seller  assents  thereto  or  not,  cre- 
ates a  breach  of  the  contract,  or,  at  all  events,  imposes  the 
legal  duty  on  the  seller  to  thereafter  take  such  steps  with 
reference  to  the  subject  of  the  contract,  as,  by  at  once  resell- 
ing the  property  on  the  market  on  account  of  the  buyer,  or 


KADISH  v.   YOUNG.  487 

making  a  forward  contract  for  the  purchase  of  other  property 
of  like  amount  and  time  of  delivery,  shall  most  effectually 
mitigate  the  damages  to  be  paid  by  the  buyer  in  consequence 
of  the  breach,  without  imposing  loss  upon  the  seller.  If  the 
buyer  may  thus  create  a  breach  of  the  contract  without  the 
consent  of  the  seller,  we  doubt  not  the  duty  to  sell  (where 
the  property  is  in  the  possession  of  the  seller  at  the  time), 
at  least  within  a  reasonable  time  after  such  breach,  will  result 
as  a  necessar}'  consequence  of  the  breach.  When  the  breach 
occurs  by  a  failure  to  accept  and  pay  for  property  tendered 
pursuant  to  the  terms  of  a  contract,  at  the  day  specified  for 
its  delivery,  this  is  doubtless  the  duty  of  the  seller,  and  no 
reason  is  now  perceived  why  it  should  not  equally  result  from 
any  breach  of  the  contract  upon  which  the  seller  is  legally 
bound  to  act. 

But  the  well  settled  doctrine  of  the  English  courts  is,  that 
a  buyer  cannot  thus  create  a  breach  of  contract  upon  which 
the  seller  is  bound  to  act.   .   .   . 

Nothing  would  seem  to  be  plainer  than  that  while  the  con- 
tract is  still  subsisting  and  unbroken,  the  parties  can  onlj'  be 
compelled  to  do  that  which  its  terms  require.  This  contract 
imposed  no  duty  upon  appellees  to  make  other  contracts  for 
January  delivery,  or  to  sell  barley  in  December,  to  protect 
appellants  from  loss.  It  did  not  even  contemplate  that  ap- 
pellees should  have  the  barley  ready  for  delivery  until  such 
time  in  January  as  they  should  elect.  If  appellees  had  then 
the  barley  on  hand,  and  had  acted  upon  appellants'  notice, 
and  accepted  and  treated  the  contract  as  then  broken,  it 
would,  doubtless,  then  have  been  their  duty  to  have  resold 
the  barley  upon  the  market,  precisely  as  they  did  in  January, 
and  have  given  appellants  credit  for  the  proceeds  of  the  sale  ; 
but  it  is  obviously  absurd  to  assume  that  it  could  have  been 
appellees'  duty  to  have  sold  barley  in  December  to  other 
parties  which  it  was  their  duty  to  deliver  to  appellants,  and 
which  appellants  had  a  legal  right  to  accept  in  January. 

We  have  been  referred  to  Dillon  v.  Anderson,  43  X.  Y.  232, 
Danforth  et  al.  v.  Walker,  37  Vt.  240  (and  same  case  again 


488  CASES  ON  DAMAGES. 

in  40  Vt.  357),  and  Collins  v.  De  Laporte,  115  Mass.  159,  as 
recognizing  the  right  of  either  party  to  a  contract  to  create  a 
breach  of  it  obligatory  upon  the  other  party,  by  giving  notice, 
in  advance  of  the  time  for  the  commencement  of  the  perform- 
ance of  the  contract,  that  he  will  not  comply  with  its  terms. 
An  examination  of  the  cases  will  disclose  that  they  do  not  go 
so  far,  but  that  the}'  are  entirely  in  harmony  with  what  we 
have  heretofore  indicated  is  our  opinion  in  respect  of  the  law 
applicable  to  the  present  question. 

in  Dillon  v.  Anderson,  the  action  was  for  a  breach  of  con- 
tract for  the  construction  of  a  pair  of  boilers  for  a  steamboat. 
After  work  had  been  commenced  under  the  contract,  and  a 
certain  amount  of  material  had  been  purchased  therefor  by 
the  plaintiff,  notice  was  given  by  the  defendaut  to  stop  work, 
that  the  contract  was  rescinded  by  the  defendant,  and  that 
he  would  make  the  plaintiff  whole  for  any  loss  he  might  suffei. 
The  court  held  that  it  was  the  duty  of  the  plaintiff,  as  soon 
as  he  received  the  notice,  to  have  so  acted  as  to  save  the 
defendant  from  further  damage,  so  far  as  it  was  in  his  power. 

In  Danforth  et  al  v.  Walker,  37  &  40  Vt.,  the  defendant 
made  a  contract  with  the  plaintiffs  to  purchase  of  them  five 
car  loads  of  potatoes,  being  fifteen  hundred  bushels,  to  be 
delivered  at  a  designated  place  as  soon  as  the  defendant 
should  call  for  them,  and  as  soon  as  he  could  get  them  away, 
some  time  during  the  winter.  Soon  after  the  first  car  load 
was  taken,  potatoes  fell  in  the  market,  and  the  defendant 
thereupon  wrote  the  plaintiffs  not  to  purchase  any  more  pota- 
toes until  they  should  hear  from  him.  The  court  held  this 
created  a  breach  of  the  contract,  and  that  plaintiffs  were  not 
authorized  to  purchase  any  more  potatoes  on  account  of  the 
defendant  after  they  received  the  notice.  The  court,  in  the 
case  in  37  Vt,  on  page  244,  use  this  language:  "  While  a 
contract  is  executory  a  party  has  the  power  to  stop  perform- 
ance on  the  other  side  by  an  explicit  direction  to  that  effect, 
by  subjecting  himself  to  such  damages  as  will  compensate 
the  other  party  for  being  stopped  in  the  performance  on  his 
part  at  that  point  or  stage  in  the  execution  of  the  contract. 


KADISH   v.   YOUNG.  489 

The  party  thus  forbidden  cannot  afterwards  go  on,  and 
thereby  increase  the  damages,  and  then  recover  such  in- 
creased damages  of  the  other  party."  And  this  same  rule, 
upon  the  authority  of  these  cases,  is  laid  down  in  2  Sutherland 
on  Damages,  361. 

The  points  in  issue  in  Collins  v.  De  Laporte  are  not  perti- 
nent to  the  present  question,  but  in  the  opinion  the  court 
quotes  the  rule  as  above  laid  down,  upon  the  authority  of 
Danforth  et  al.  v.  Walker,  and  other  cases. 

It  will  be  observed  that  in  each  of  these  cases  the  time  for 
the  performance  of  the  contract  had  arrived,  and  its  perform- 
ance had  been  entered  upon.  In  neither  of  them  was  the 
defendant  at  liberty,  after  notifying  the  plaintiff  not  to  pro- 
ceed further  in  the  performance  of  the  contract,  to  demand 
that  he  should  proceed  to  perform  it,  as  it  was  said  in  Frost 
v.  Knight,  L.  R.  7  Ex.  Ill,  the  defendant  was,  in  case  of 
notice,  not  to  perform  a  contract  the  time  of  the  performance 
of  which  is  to  commence  in  the  future.  In  these  cases  there 
is  no  time  or  opportunity  for  repentance  or  change  of  mind, 
—  in  those  there  was.  That  it  was  not  intended,  by  these 
cases,  to  trench  upon  the  doctrine  of  Leigh  v.  Patterson, 
8  Taunt.  540,  Phillpotts  v.  Evans,  5  M.  &  W.  475,  and 
other  cases  of  like  character,  is  manifest  from  the  fact  that 
thej'  make  no  reference  to  those  cases,  or  to  the  rule  they 
announce ;  and  in  Collins  v.  De  Laporte  no  reference  is 
made  to  Daniels  v.  Newton,  reported  in  the  next  preceding 
volume  (114  Mass.  530),  wherein  that  court  refused  to  follow 
the  modification  made  in  Hochster  v.  De  La  Tour,  2  E.  &  B. 
678,  and  Frost  v.  Knight,  of  the  rule  recognized  by  the  pre- 
ceding English  decisions,  but  held  that  an  action  for  the 
breach  of  a  written  agreement  to  purchase  land,  brought 
before  the  expiration  of  the  time  given  for  the  purchase, 
cannot  be  maintained  by  proof  of  an  absolute  refusal,  on 
the  defendant's  part,  ever  to  purchase.  It  follows  that,  in 
our  opinion,  the  ruling  on  the  point  in  question  was  free 
of  substantial  objection. 

Judgment  affirmed. 


490  CASES  ON  DAMAGES. 

ROEHM  v.  HORST. 
Supreme  Court  of  the  United  States,  1900.     178  U.  S.  1. 

Action  for  breach  of  a  contract  by  which  the  plaintiff 
agreed  to  sell  and  the  defendant  to  buy  certain  hops  of  the 
crop  of  a  subsequent  year.  The  contract  price  was  twenty- 
two  cents  per  pound.  The  defendant  repudiated  the  contract 
before  the  time  for  delivery.  At  the  time  of  the  repudiation 
the  plaintiff  could  have  made  forward  contracts  for  the  de- 
livery of  such  hops  as  he  had  contracted  to  furnish  at  the 
time  agreed  for  delivery  at  nine  cents  per  pound.  The  plaintiff 
brought  suit  at  once  upon  receiving  notice  of  repudiation.1 

Fuller,  C.  J.  As  to  the  question  of  damages,  if  the  ac- 
tion is  not  premature,  the  rule  is  applicable  that  plaintiff  is 
entitled  to  compensation  based,  as  far  as  possible,  on  the 
ascertainment  of  what  he  would  have  suffered  by  the-  con- 
tinued breach  of  the  other  party  down  to  the  time  of 
complete  performance,  less  any  abatement  by  reason  of  cir- 
cumstances of  which  he  ought  reasonably  to  have  availed 
himself.  If  a  vendor  is  to  manufacture  goods,  and  during 
the  process  of  manufacture  the  contract  is  repudiated,  he  is 
not  bound  to  complete  the  manufacture,  and  estimate  his 
damages  by  the  difference  between  the  market  price  and  the 
contract  price,  but  the  measure  of  damage  is  the  difference 
between  the  contract  price  and  the  cost  of  performance. 
Hinckley  v.  Pittsburg  Company,  121  U.  S.  264.  Even  if  in 
such  cases  the  manufacturer  actually  obtains  his  profits  be- 
fore the  time  fixed  for  performance,  and  recovers  on  a  basis 
of  cost  which  might  have  been  increased  or  diminished  by 
subsequent  events,  the  party  who  broke  the  contract  before 
the  time  for  complete  performance  cannot  complain,  for  he 
took  the  risk  involved  in  such  anticipation.     If  the  vendor 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  Court. 
So  much  of  the  opinion  only  is  given  as  deals  with  the  measure  of 
damages. 


MASTERTON  v.  THE  MAYOR  OF  BROOKLYN.       491 

has  to  buy  instead  of  to  manufacture,  the  same  principle  pre- 
vails, and  he  may  show  what  was  the  value  of  the  contract 
by  showing  for  what  price  he  could  have  made  sub-contracts, 
just  as  the  cost  of  manufacture  in  the  case  of  a  manufacturer 
may  be  shown.  Although  he  may  receive  his  money  earlier 
in  this  way,  and  may  gain  or  lose  by  the  estimation  of  his 
damage  in  advance  of  the  time  for  performance,  still,  as  we 
have  seen,  he  has  the  right  to  accept  the  situation  tendered 
him,  and  the  other  party  cannot  complain. 

In  this  case  plaintiffs  showed  at  what  prices  they  could 
have  made  sub-contracts  for  forward  deliveries  according  to 
the  contracts  in  suit,  and  the  difference  between  the  prices 
fixed   by  the   contracts   sued  on   and   those  was  correctly 

allowed. 

Judgment  affirmed. 


MASTERTON  v.   THE  MAYOR  OF  BROOKLYN. 

New  York,  1845.     7  Hill,  62. 

This  was  an  action  of  covenant  commenced  in  1840,  and 
tried  at  the  New  York  Circuit  in  June,  1843,  before  Kent,  C. 
Judge.  The  case  was  this  :  On  the  26th  of  January,  1836, 
a  covenant  was  entered  into  between  the  defendants  and  the 
plaintiffs,  by  which  the  latter  agreed,  at  their  own  risk,  costs, 
and  charges,  to  furnish,  cut,  fit,  and  deliver  (properly  and 
sufficiently  prepared  for  setting),  at  the  site  of  the  City  Hall 
in  the  city  of  Brooklyn,  all  the  marble  that  might  be  required 
for  building  the  said  City  Hall,  according  to  certain  plans 
and  specifications  then  exhibited ;  all  the  said  marble  to  be 
of  the  same  quality  as  that  used  for  the  ornamental  and  best 
work  on  the  new  Custom  House  in  the  city  of  New  York, 
and  of  the  best  kind  of  sound  white  marble  from  Kain  & 
Morgan's  quarry,  in  Eastchester.1 

1  Part  of  the  statement  of  facts  is  omitted. 


492  CASES  ON  DAMAGES. 

On  the  7th  of  March,  1836,  the  plaintiffs  entered  into  a 
covenant  with  Kain  &  Morgan.  This  covenant,  after  refer- 
ring to  the  one  entered  into  with  the  defendants,  and  reciting 
a  part  of  the  same,  provided  that  Kain  &  Morgan  should 
furnish  from  their  quarry,  in  Eastchester,  all  the  marble  re- 
quired for  erecting,  completing,  and  finishing  the  City  Hall 
in  the  city  of  Brooklyn. 

The  plaintiffs  also  proved  that  they  commenced  the  deliv- 
ery of  marble  in  pursuance  of  the  covenant  between  them 
and  the  defendants,  and  continued  so  to  do  until  July,  1837, 
when  the  defendants  suspended  operations  upon  the  building 
for  want  of  funds,  and  refused  to  receive  any  more  materials 
of  the  plaintiffs,  though  the  latter  were  ready  and  offered  to 
perform.  The  entire  quantity  of  marble  necessary  to  fulfil 
the  contract  on  the  part  of  the  plaintiffs,  according  to  the 
estimates  made  at  the  trial,  was  88,819  feet.  At  the  time  the 
work  was  suspended,  the  plaintiffs  had  delivered  14,779  feet, 
for  which  they  were  paid  the  contract  price.  The  plaintiffs 
then  had  on  hand,  at  Kain  &  Morgan's  quarry,  about  3308 
feet,  which  was  suitably  fitted  and  prepared  for  delivery. 
A  witness  swore  that  this  was  not  of  much  value  for  other 
buildings,  and  would  not  probably  bring  over  two  shillings 
per  foot.  Other  witnesses  swore  that,  had  the  work  pro- 
gressed with  ordinary  diligence,  it  would  have  taken  about 
five  years  to  complete  the  contract  on  the  part  of  the  plain- 
tiffs. Considerable  testimony  was  given  tending  to  show  the 
cost  of  marble  in  the  quarry,  and  the  expense  of  raising, 
dressing,  and  transporting  it  to  the  place  of  delivery.  And  the 
plaintiffs  offered  to  show  "  what  would  be  the  difference  be- 
tween the  cost  to  them  of  the  marble  in  the  contract,  and  the 
price  that  was  to  be  paid  for  it  by  the  contract ;  "  which  evi- 
dence was  objected  to,  but  the  Circuit  Judge  admitted  it,  and 
the  defendants  excepted.  The  witnesses  answered  that,  in 
1836,  the  difference  would  be  about  20  per  cent ;  in  1837,  from 
25  to  30  percent;  in  1838,  about  25  per  cent;  in  1839,  from 
25  to  30  per  cent ;  and  in  1840,  from  30  to  40  per  cent.  The 
witnesses  also  testified  that    the  ordinary  profit  calculated 


MASTERTON   v.   THE   MAYOR   OF   BROOKLYN.       403 

upon  b}*  master  stone-cutters  was  from  10  to  20  per  cent, 
and  that  15  per  cent  was  a  fair  living  profit.  All  this  testi- 
mony was  objected  to,  but  the  Circuit  Judge  admitted  it,  and 
the  defendants  again  excepted. 

The  Circuit  Judge  charged  the  jury,  among  other  things,  as 
follows:  "  The  plaintiffs'  contract  with  Kain  &  Morgan,  if 
made  in  good  faith,  was  entered  into  as  a  reasonable  part  of 
the  performance  by  the  plaintiffs  of  their  own  contract :  and 
if  the  defendants,  by  stopping  the  work,  obliged  the  plaintiffs 
to  break  their  contract  with  Kain  &  Morgan,  then  the  damages 
on  the  latter  ought  to  be  allowed  to  the  plaintiffs,  who  would 
be  responsible  to  Kain  &  Morgan  for  the  same.  ...  In 
fixing  the  damages  to  be  allowed  the  plaintiffs,  the  jury  are 
to  take  things  as  they  were  at  the  time  the  work  was  sus- 
pended, and  not  allow  for  any  increased  benefits  the}'  would 
have  received  from  the  subsequent  fall  of  wages  or  subse- 
quent circumstances." 

Nelson,  C.J.  The  damages  for  the  marble  on  hand,  ready 
to  be  delivered,  was  not  a  matter  in  dispute  on  the  argu- 
ment. The  true  measure  of  allowance  in  respect  to  that 
item  was  conceded  to  be  the  difference  between  the  contract 
price,  and  the  market  value  of  the  article  at  the  place 
of  delivery.  This  loss  the  plaintiffs  had  actually  sustained, 
regard  being  had  to  their  rights  as  acquired  under  the 
contract. 

The  contest  arises  out  of  the  claim  for  damages  in  respect 
to  the  remainder  of  the  marble  which  the  plaintiffs  had  agreed 
to  furnish,  but  which  they  were  prevented  from  furnishing  by 
the  suspension  of  the  work  in  July,  1837.  This  portion  was 
not  read}'  to  be  delivered  at  the  time  the  defendants  broke  up 
the  contract,  but  the  plaintiffs  were  then  willing  and  offered 
to  perform  in  all  things  on  their  part,  and  the  case  assumes 
that  they  were  possessed  of  sufficient  means  and  ability  to 
have  done  so. 

The  plaintiffs  insist  that  the  gains  they  would  have  real- 
ized, over  and  above  all  expenses,  in  case  the}'  had  been 
allowed  to  perform  the  contract,  enter  into  and  properly  con- 


494  CASES  ON  DAMAGES. 

stitute  a  part  of  the  loss  and  damage  occasioned  by  the  breach  : 
and  they  were  accordingly  permitted,  in  the  course  of  the 
trial,  to  give  evidence  tending  to  show  what  amount  of  gains 
they  would  have  realized  if  the  contract  had  been  carried 
into  execution. 

On  the  other  hand,  the  defendants  say  that  this  claim  ex- 
ceeds the  measure  of  damages  allowed  by  the  common  law 
for  the  breach  of  an  executory  contract.  They  insist  that  it 
is  simply  a  claim  for  the  profits  anticipated  from  a  supposed 
good  bargain,  and  that  these  are  too  uncertain,  speculative, 
and  remote  to  form  the  basis  of  a  recover}-. 

It  is  not  to  be  denied  that  there  are  profits  or  gains  deriv- 
able from  a  contract  which  are  uniformly  rejected  as  too  con- 
tingent and  speculative  in  their  nature,  and  too  dependent 
upon  the  fluctuation  of  markets  and  the  chances  of  business, 
to  enter  into  a  safe  or  reasonable  estimate  of  damages.  Thus, 
any  supposed  successful  operation  the  party  might  have  made, 
if  he  had  not  been  prevented  from  realizing  the  proceeds  of 
the  contract  at  the  time  stipulated,  is  a  consideration  not  to 
be  taken  into  the  estimate.  Besides  the  uncertain  and  con- 
tingent issue  of  such  an  operation  in  itself  considered,  it  has 
no  legal  or  necessary  connection  with  the  stipulations  be- 
tween the  parties,  and  cannot  therefore  be  presumed  to  have 
entered  into  their  consideration  at  the  time  of  contracting. 
It  has  accordingly  been  held  that  the  loss  of  any  speculation 
or  enterprise  in  which  a  part}'  may  have  embarked,  relying 
on  the  proceeds  to  be  derived  from  the  fulfilment  of  an  exist- 
ing contract,  constitutes  no  part  of  the  damages  to  be  recov- 
ered in  case  of  breach.  So  a  good  bargain  made  by  a  vendor, 
in  anticipation  of  the  price  of  the  article  sold,  or  an  advanta- 
geous contract  of  resale  made  by  a  vendee,  confiding  in  the 
vendor's  promise  to  deliver  the  article,  are  considerations 
always  excluded  as  too  remote  and  contingent  to  affect  the 
question  of  damages.  Clare  v.  Maynard,  6  Adol.  &  Ellis, 
519,  and  Cox  v.  Walker,  in  the  note  to  that  case  ;  Walker  v. 
Moore,  10  Barn.  &  Cress.  416  ;  Cary  v.  Gruman,  4  Hill, 
627,  628  ;  Chitty  on  Contracts,  458,  870. 


MASTERTON  v.   THE  MAYOR  OF  BROOKLYN.   495 

The  civil  law  is  in  accordance  with  this  rule.  "  In  gen- 
eral," says  Pothier,  "  the  parties  are  deemed  to  have  contem- 
plated only  the  damages  and  interest  which  the  creditor  might 
suffer  from  the  non-performance  of  the  obligation,  in  respect 
to  the  particular  thing  which  is  the  object  of  it,  and  not 
such  as  ma}'  have  been  incidentally  occasioned  thereby  in  re- 
spect to  his  other  affairs  ;  the  debtor  is  therefore  not  answer- 
able for  these  ;  but  only  for  such  as  are  suffered  with  respect 
to  the  thing  which  is  the  object  of  the  obligation,  damni  et 
interesse  ipsain  rem  non  habitam."  1  Evans'  Poth.  91  ;  and 
see  Dom.  B.  3,  tit.  5,  §  2,  art.  3,  4,  5,  6. 

Wheu  the  books  and  cases  speak  of  the  profits  anticipated 
from  a  good  bargain  as  matters  too  remote  and  uncertain  to 
be  taken  into  the  account  in  ascertaining  the  true  measure  of 
damages,  the}'  usually  have  reference  to  dependent  and  col- 
lateral engagements  entered  into  on  the  faith  and  in  expec- 
tation of  the  performance  of  the  principal  contract.  The  per- 
formance or  non-performance  of  the  latter  may  and  doubtless 
often  does  exert  a  material  influence  upon  the  collateral  enter- 
prises of  the  party  ;  and  the  same  may  be  said  as  to  his  gen- 
eral affairs  and  business  transactions.  But  the  influence  is 
altogether  too  remote  and  subtile  to  be  reached  b}T  legal  proof 
or  judicial  investigation.  And  besides,  the  consequences, 
when  injurious,  are  as  often  perhaps  attributable  to  the 
indiscretion  and  fault  of  the  party  himself,  as  to  the  con- 
duct of  the  delinquent  contractor.  His  condition,  in  respect 
to  the  measure  of  damages,  ought  not  to  be  worse  for 
having  failed  in  his  engagement  to  a  person  whose  affairs 
were  embarrassed,  than  if  it  had  been  made  with  one  in 
prosperous  or  affluent  circumstances.  Dom.  B.  3,  tit.  5,  §  2, 
art.  4. 

But  profits  or  advantages  which  are  the  direct  and  imme- 
diate fruits  of  the  contract  entered  into  between  the  parties, 
stand  upon  a  different  footing.  These  are  part  and  parcel  of 
the  contract  itself,  entering  into  and  constituting  a  portion  of 
its  very  elements ;  something  stipulated  for,  the  right  to  the 
enjoyment  of  which  is  just  as  clear  and  plain  as  to  the  fulfil- 


496  CASES   ON  DAMAGES. 

ruent  of  any  other  stipulation.  They  are  presumed  to  have 
been  taken  into  consideration  and  deliberated  upon  before  the 
contract  was  made,  and  formed  perhaps  the  only  inducement 
to  the  arrangement.  The  parties  may  indeed  have  entertained 
different  opinions  concerning  the  advantages  of  the  bargain, 
each  supposing  and  believing  that  he  had  the  best  of  it; 
but  this  is  mere  matter  of  judgment  going  to  the  forma- 
tion of  the  contract,  for  which  each  has  shown  himself 
willing  to  take  the  responsibility,  and  must  therefore  abide 
the  hazard. 

Such  being  the  relative  position  of  the  contracting  parties, 
it  is  difficult  to  comprehend  why,  in  case  one  party  has  de- 
prived the  other  of  the  gains  or  profits  of  the  contract  by 
refusing  to  perform  it,  this  loss  should  not  constitute  a  proper 
item  in  estimating  the  damages.  To  separate  it  from  the 
general  loss  would  seem  to  be  doing  violence  to  the  inten- 
tion and  understanding  of  the  parties,  and  severing  the  con- 
tract itself. 

The  civil-law  writers  plainby  include  the  loss  of  profits,  in 
cases  like  the  present,  within  the  damages  to  which  the  com- 
plaining party  is  entitled.  They  hold  that  he  is  to  be  indem- 
nified for  "the  loss  which  the  non-performance  of  the  obli- 
gation has  occasioned  him,  and  for  the  gain  of  which  it  has 
deprived  him."  1  Evans'  Poth.  90;  Dom.  B.  3,  tit.  5,  §  2, 
art.  6,  12.  And  upon  looking  into  the  common-law  authori- 
ities  bearing  upon  the  question,  especially  the  later  ones,  they 
will  be  found  to  come  nearly  if  not  quite  up  to  the  rule  of  the 
civil  law. 

In  Boorman  v.  Nash,  9  Barn.  &  Cress.  145,  it  appeared 
that  the  defendant  contracted  in  November  for  a  quantity  of 
oil,  one  half  to  be  delivered  to  him  in  February  following, 
and  the  rest  in  March  ;  but  he  refused  to  receive  any  part  of 
it.  And  the  com-t  held  that  the  plaintiff  was  entitled  to  the 
difference  between  the  contract  price,  and  that  which  might 
have  been  obtained  in  market  on  the  days  when  the  contract 
ought  to  have  been  completed.  See  M'Lean  v.  Dunn,  4  Bing. 
722.     The  case  of  Leigh  v.  Paterson,  8  Taunt.  540,  was  one 


MASTERTON  v.   THE  MAYOR  OF  BROOKLYN.   497 

in  which  the  vendor  was  sued  for  not  delivering  goods  on 
the  31st  of  December,  according  to  his  contract.  It  ap- 
peared that,  in  the  month  of  October  preceding,  he  had 
apprised  the  vendee  that  the  goods  would  not  be  delivered, 
at  which  time  the  market  value  was  considerably  less  than  on 
the  31st  of  December.  The  court  held  that  the  vendee  had 
a  right  to  regard  the  contract  as  subsisting  until  the  31st  of 
December,  if  he  chose,  and  recover  the  difference  between 
the  contract  price,  and  the  market  value  on  that  da}*.  See 
also  Gainsford  v.  Carroll,  2  Barn.  &  Cress.  624. 

The  above  are  cases,  it  will  be  seen,  in  which  the  profits 
of  a  good  bargain  were  regarded  as  a  legitimate  item  of  dam- 
ages, and  constituted  almost  the  only  ground  of  recovery. 
And  it  appears  to  me  that  we  have  only  to  apply  the  prin- 
ciple of  these  cases  to  the  one  in  hand,  in  order  to  determine 
the  measure  of  damages  which  must  govern  it.  The  contract 
here  is  for  the  delivery  of  marble,  wrought  in  a  particular 
manner,  so  as  to  be  fitted  for  use  in  the  erection  of  a  certain 
building.  The  plaintiffs'  claim  is  substantially  one  for  not 
accepting  goods  bargained  and  sold  ;  as  much  so  as  if  the 
subject  matter  of  the  contract  had  been  bricks,  rough  stone, 
or  any  other  article  of  commerce  used  in  the  process  of  build- 
ing. The  only  difficulty  or  embarrassment  in  applying  the 
general  rule  grows  out  of  the  fact  that  the  article  in  question 
does  not  appear  to  have  any  well-ascertained  market  value. 
But  this  cannot  change  the  principle  which  must  govern,  but 
only  the  mode  of  ascertaining  the  actual  value  of  the  article, 
or  rather  the  cost  to  the  party  producing  it.  Where  the  arti- 
cle has  no  market  value,  an  investigation  into  the  constituent 
elements  of  the  cost  to  the  party  who  has  contracted  to  fur- 
nish it,  becomes  necessary  ;  and  that,  compared  with  the  con- 
tract price,  will  afford  the  measure  of  damages.  The  jury 
will  be  able  to  settle  this  upon  evidence  of  the  outlays,  trou- 
ble, risk,  etc.,  which  enter  into  and  make  up  the  cost  of  the 
article  in  the  condition  required  by  the  contract,  at  the  place 
of  delivery.  If  the  cost  equals  or  exceeds  the  contract  price, 
the  recovery  will  of  course  be  nominal ;  but  if  the  contract 

32 


498  CASES  ON  DAMAGES. 

price  exceeds  the  cost,  the  difference  will  constitute  the 
measure  of  damages. 

It  has  been  argued  that,  inasmuch  as  the  furnishing  of  the 
marble  would  have  run  through  a  period  of  five  years  —  of 
which  about  one  year  and  a  half  only  had  expired  at  the  time 
of  the  suspension  —  the  benefits  which  the  party  might  have 
realized  from  the  execution  of  the  contract,  must  necessarily 
be  speculative  and  conjectural ;  the  court  and  jury  having  no 
certain  data  upon  which  to  make  the  estimate.  If  it  were 
necessary  to  make  the  estimate  upon  any  such  basis,  the  argu- 
ment would  be  decisive  of  the  present  claim.  But  in  my 
judgment  no  such  necessity  exists.  Where  the  contract,  as 
in  this  case,  is  broker)  before  the  arrival  of  the  time  for  full  per- 
formance, and  the  opposite  party  elects  to  consider  it  in  that 
light,  the  market  price  on  the  day  of  the  breach  is  to  govern 
in  the  assessment  of  damages.  In  other  words,  the  damages 
are  to  be  settled  and  ascertained  according  to  the  existing 
state  of  the  market  at  the  time  the  cause  of  action  arose,  and 
not  at  the  time  fixed  for  full  performance.  The  basis  upon 
which  to  estimate  the  damages,  therefore,  is  just  as  fixed 
and  easily  ascertained  in  cases  like  the  present,  as  in  actions 
predicated  upon  a  failure  to  perform  at  the  day. 

It  will  be  seen  that  we  have  laid  altogether  out  of  view  the 
sub-contract  of  Kain  &  Morgan,  and  all  others  that  may  have 
been  entered  into  b}'  the  plaintiffs  as  preparatory  and  sub- 
sidiary to  the  fulfilment  of  the  principal  one  with  the  defend- 
ants. Indeed,  I  am  unable  to  comprehend  how  these  can  be 
taken  into  the  account,  or  become  the  subject  matter  of  con- 
sideration at  all,  in  settling  the  amount  of  damages  to  be 
recovered  for  a  breach  of  the  principal  contract.  The  defend- 
ants had  no  control  over  or  participation  in  the  making  of  the 
sub-contracts,  and  are  certainly  not  to  be  compelled  to  assume 
them  if  improvidently  entered  into.  On  the  other  hand,  if 
they  were  made  so  as  to  secure  great  advantages  to  the  plain- 
tiffs, surely  the  defendants  are  not  entitled  to  the  gains  which 
might  be  realized  from  them.  In  any  aspect,  therefore,  these 
sub-contracts  present  a  most  unfit  as  well  as  unsatisfactory 


MASTERTON   v.   THE   MAYOR   OF   BROOKLYN.       499 

basis  upon  which  to  estimate  the  real  damages  and  loss  occa- 
sioned by  the  default  of  the  defendants.  The  idea  of  assum- 
ing that  the  plaintiffs  were  necessarily  compelled  to  break  all 
their  sub-contracts,  as  a  consequence  of  the  breach  of  the 
principal  one,  and  that  the  damages  to  which  they  may  thus 
be  subjected  ought  to  enter  into  the  estimate  of  the  amount 
recoverable  against  the  defendants  is  too  hypothetical  and 
remote  to  lead  to  any  safe  or  equitable  result.  And  yet,  the 
fact  that  these  sub-contracts  must  ordinarily  be  entered  into 
preparatory  to  the  fulfilment  of  the  principal  one,  shows  the 
injustice  of  restricting  the  damages,  in  cases  like  the  present, 
to  compensation  for  the  work  actually  done,  and  the  item 
of  materials  on  hand.  We  should  thus  throw  the  whole 
loss  and  damage  that  would  or  might  arise  out  of  con- 
tracts for  further  materials,  etc.,  entirely  upon  the  party  not 
in  fault. 

If  there  was  a  market  value  of  the  article  in  this  case,  the 
question  would  be  a  simple  one.  As  there  is  none,  however, 
the  parties  will  be  obliged  to  go  into  an  inquiry  as  to  the 
actual  cost  of  furnishing  the  article  at  the  place  of  delivery  ; 
and  the  court  and  jury  should  see  that  in  estimating  this 
amount,  it  be  made  upon  a  substantial  basis,  and  not  left  to 
rest  upon  the  loose  and  speculative  opinions  of  witnesses.  The 
constituent  elements  of  the  cost  should  be  ascertained  from 
sound  and  reliable  sources  ;  from  practical  men,  having  expe- 
rience in  the  particular  department  of  labor  to  which  the 
contract  relates.  It  is  a  very  easy  matter  to  figure  out  lartre 
profits  upon  paper;  but  it  will  be  found  that  these,  in  a  great 
majority  of  the  cases,  become  seriously  reduced  when  sub- 
jected to  the  contingencies  and  hazards  incident  to  actual 
performance.  A  jury  should  scrutinize  with  care  and  watch- 
fulness any  speculative  or  conjectural  account  of  the  cost  of 
furnishing  the  article  that  would  result  in  a  very  unequal  bar- 
gain between  the  parties,  by  which  the  gains  and  benefits,  or, 
in  other  words,  the  measure  of  damages  against  the  defend- 
ants, are  unreasonably  enhanced.  They  should  not  overlook 
the  risks  and  contingencies  which  are  almost  inseparable  from 


500  CASES  ON  DAMAGES. 

the  execution  of  contracts  like  the  one  in  question,  and 
which  increase  the  expense  independently  of  the  outlays  in 
labor  and  capital. 

These  views,  it  will  be  seen,  when  contrasted  with  the  law 
as  expounded  and  applied  by  the  Circuit  Judge,  necessarily 
lead  to  the  granting  of  a  new  trial. 

Beardslet,  J.  The  Circuit  Judge  clearly  erred  in  that  part 
of  his  charge  to  the  jury  which  related  to  the  contract  of  the 
plaintiffs  with  Kain  &  Morgan.  No  damages  are  allowable  on 
account  of  this  contract,  nor  am  I  able  to  see  how  it  can  be 
regarded  as  relevant  evidence  upon  an}'  disputed  point  con- 
nected with  the  amount  for  which  the  defendants  are  liable. 

The  main  question  in  the  case  arises  out  of  the  claim  of 
the  plaintiffs  in  respect  to  that  -portion  of  their  contract  with 
the  defendants  which  remained  wholly  unexecuted  in  July, 
1837.  I  think  the  plaintiffs  are  entitled  to  recover  the  amount 
they  would  have  realized  as  profits,  had  they  been  allowed 
fully  to  execute  their  contract.  The  defendants  are  not  to 
gain  by  their  wrongful  act,  nor  is  that  to  deprive  the  plain- 
tiffs of  the  advantages  they  had  secured  by  the  contract,  and 
which  would  have  resulted  to  them  from  its  performance. 
The  jury  must  therefore  ascertain  what  it  would  probably 
have  cost  them  to  complete  the  contract,  over  and  above  the 
materials  on  hand  ;  including  the  value  of  the  marble  re- 
quired, the  labor  of  quarrying  and  preparing  it  for  use,  the 
expense  of  transportation,  superintendence,  and  insurance 
against  all  hazards,  together  with  every  other  expense  inci- 
dent to  the  fulfilment  of  the  undertaking.  The  aggregate 
of  these  expenditures  is  to  be  deducted  from  the  amount 
which  would  be  payable  for  the  performance  of  this  part  of 
the  contract,  according  to  the  prices  therein  stipulated,  and 
the  balance  will  be  the  damages  which  the  jury  should  allow 
for  the  item  under  consideration. 

Remote  and  contingent  damages,  depending  on  the  result 
of  successive  schemes  or  investments,  are  never  allowed  for 
the  violation  of  an}-  contract.  But  profits  to  be  earned  and 
made  by  the  faithful  execution  of  a  fair  contract  are  not  of 


MASTERTON  v.  THE  MAYOR  OF  BROOKLYN.      501 

this  description.  A  right  to  damages  equivalent  to  such 
profits  results  directly  and  immediately  from  the  act  of  the 
party  who  prevents  the  contract  from  being  performed. 

Where  a  vendor  has  agreed  to  sell  and  deliver  personal 
property  at  a  particular  day,  and  fails  to  perform  his  contract, 
the  vendee  may  recover  in  damages  the  difference  between 
the  contract  price,  and  the  market  value  of  the  property 
at  the  time  when  it  should  have  been  delivered.  Chit,  on  Con- 
tracts, 445,  5th  Am.  ed. ;  Dey  v.  Dox,  9  Wend.  129  ;  Gains- 
ford  v.  Carroll,  2  Barn.  &  Cress.  624  ;  Shepperd  v.  Hampton, 
3  Wheat.  200 ;  Quarles  v.  George,  20  Pick.  400 ;  Shaw  v. 
Nudd,  8  Id.  9  ;  2  Phill.  Ev.  104.  So,  if  a  person  who  has 
agreed  to  purchase  goods  at  a  certain  price  refuses  to  receive 
them,  he  must  pay  the  difference  between  their  market  value 
and  the  enhanced  price  which  he  contracted  to  pay.  2  Stark. 
Ev.  1201,  7th  Am.  ed. ;  Boorman  v.  Nash,  9  Barn.  & 
Cress.  145. 

These  principles  are  strictly  applicable  to  the  present  case. 
In  reason  and  justice  there  can  be  no  difference  between  the 
damages  which  should  be  recovered  for  the  breach  of  an  ordi- 
nary agreement  to  buy  or  sell  goods,  and  one  to  procure 
building  materials,  fit  thern  for  use,  and  deliver  them  in  a 
finished  state,  at  a  stipulated  price.  In  neither  case  should 
the  wrong-doer  be  allowed  to  profit  b}'  his  wrongful  act.  The 
part}'  who  is  ready  to  perform  is  entitled  to  a  full  indemnity 
for  the  loss  of  his  contract.  He  should  not  be  made  to  suffer 
by  the  delinquency  of  the  other  part}',  but  ought  to  recover 
precisely  what  he  would  have  made  by  performance.  This  is 
as  sound  in  morals  as  it  is  in  law.  Shannon  v.  Comstock, 
21  Wend.  461 ;  Miller  v.  Mariner's  Church,  7  Greenl.  51  ; 
Shaw  v.  Nudd,  8  Pick.  13;  Swift  v.  Barnes,  16  Id.  196; 
Royalton  v.  The  Royal  ton  &  Woodstock  Turnpike  Co.,  14 
Verm.  Rep.  311. 

The  plaintiffs  were  not  bound  to  wait  till  the  period  had 
elapsed  for  the  complete  performance  of  the  agreement,  nor 
to  make  successive  offers  of  performance,  in  order  to  recover 
all  their  damages.   They  might  regard  the  contract  as  broken 


502  X  CASES   ON  DAMAGES. 

up,  so  far  as  to  absolve  them  from  making  further  efforts  to 
perform  and  give  them  a  right  to  recover  full  damages  as  for 
a  total  breach.  I  am  not  prepared  to  say  that  the  plaintiffs 
might  not  have  brought  successive  suits  on  this  covenant, 
had  the}'  from  time  to  time  made  repeated  offers  to  perform 
on  their  part,  which  were  refused  by  the  defendants  ;  but  this 
the  plaintiffs  were  not  bound  to  do. 

There  can  be  no  serious  difficulty  in  assessing  damages  ac- 
cording to  the  principles  which  have  been  stated.  The  con- 
tract was  made  in  1836  ;  and,  according  to  the  testimony, 
about  five  years  would  have  been  a  reasonable  time  for  its 
execution.  That  time  has  gone  by.  The  expense  of  execut- 
ing the  contract  must  necessarily  depend  upon  the  prices  of 
labor  and  materials.  If  prices  fluctuated  during  the  period 
in  question,  that  may  be  shown  by  testimony.  Tn  this  respect 
there  is  no  need  of  resorting  to  conjecture  ;  for  all  the  data 
necessary  to  form  a  correct  estimate  of  the  entire  expense  of 
executing  the  contract,  can  now  be  furnished  by  witnesses. 

If  the  cause  had  been  brought  to  trial  before  the  time  for 
completing  the  contract  expired,  it  would  have  been  im- 
practicable to  make  an  accurate  assessment  of  the  damages. 
This  is  no  reason,  however,  why  the  injured  party  should  not 
have  his  damages  ;  although  the  difficulty  in  making  a  just 
assessment  in  such  a  case  has  been  deemed  a  sufficient 
ground  for  decreeing  specific  performance.  Adderly  v. 
Dixon,  1  Sim.  &  Stu.  607,  and  the  cases  there  cited.  In 
Royalton  v.  The  Royalton  &  Woodstock  Turnpike  Co.,  14 
Verm.  R.  311,  324,  an  action  was  brought  on  a  contract  which 
had  about  twelve  years  to  run.  And  the  court  held,  in  grant- 
ing a  new  trial,  that  the  rule  of  damages  "  should  have  been 
to  give  the  plaintiffs  the  difference  between  what  they  were 
to  pay  the  defendants,  and  the  probable  expense  of  perform- 
ing the  contract ;  and  thus  assess  the  entire  damages  for  the 
remaining  twelve  years."  No  rule  which  will  be  absolutely 
certain  to  do  justice  between  the  parties  can  be  laid  down  for 
such  a  case.  Some  time  must  be  taken  arbitrarily  at  which 
prices  are  to  be  ascertained  and  estimated ;  and  the  day  of 


GOODRICH  v.  HUBBARD.  503 

the  breach  of  the  contract,  or  of  the  commencement  of  the 
suit,  should  perhaps  be  adopted  under  such  circumstances. 
But  we  need  not,  in  the  present  case,  express  any  opinion  on 
that  point.  No  conjectural  estimate  is  required  to  ascertain 
what  would  have  been  the  expense  of  a  complete  execution 
of  this  contract ;  but  the  state  of  the  market,  in  respect  to 
prices,  is  now  susceptible  of  explicit  and  intelligible  proof. 
And  where  that  is  so,  it  seems  to  me  unsuitable  to  adopt  an 
arbitrary  period  ;  especially  as  the  estimate  of  damages  must 
in  any  event  be  somewhat  conjectural. 

I  think  the  defendants  are  entitled  to  a  new  trial,  and  that 
the  damages  should  be  assessed  upon  the  principles  stated. 

Bronson,  J.  As  the  marble  had  no  market  value,  the  ques- 
tion of  profits  involves  an  inquiry  into  the  cost  of  the  rough 
material  in  the  quarry,  and  the  expense  of  raising,  dressing, 
and  transporting  it  to  the  place  of  delivery.  There  may  have 
been  fluctuations  in  the  prices  of  labor  and  materials  between 
the  day  of  the  breach  and  the  time  when  the  contract  was  to 
have  been  fully  performed  ;  and  this  makes  the  question  upon 
which  m}T  brethren  are  not  agreed.  I  concur  in  opinion  with 
the  Chief  Justice,  that  such  fluctuations  in  prices  should  not 
be  taken  into  the  account  in  ascertaining  the  amount  of  dam- 
ages, but  that  the  court  and  jury  should  be  governed  entirely 
by  the  state  of  things  which  existed  at  the  time  the  contract 
was  broken.  This  is  the  most  plain  and  simple  rule  :  it  will 
best  preserve  the  analogies  of  the  law  ;  and  will  be  as  likely 
as  an}-  other  to  do  substantial  justice  to  both  parties. 

JVezo  trial  granted. 


GOODRICH  v.   HUBBARD. 

Michigan,  1883.     51  Mich.  62. 

Sherwood,  J.1    This  is  an  action  of  assumpsit  to  recover 
damages  of  defendant  for  an  alleged  breach  of  contract,  in 

1  Part  of  the  opinion  is  omitted. 


504  CASES   ON  DAMAGES. 

preventing  plaintiffs  from  hauling  and  delivering  a  quantity 
of  pine  saw-logs.  .  .  . 

The  referee  finds  as  conclusions  of  law  :  1st,  By  the  terms 
of  the  contract  of  Oct.  25,  1879,  the  plaintiff  had  a  right  to 
haul  said  logs  in  the  winter  season,  when  there  should  be 
snow  on  or  frost  in  the  ground  suitable  to  make  roads  to 
move  said  logs  on  sleighs  ;  and  there  being  no  favorable 
weather  to  make  suitable  roads  to  haul  said  logs  in  the  winter 
of  1879  and  1880,  the  plaintiff  had  until  and  during  the 
winter  of  1880  and  1881  to  haul  said  logs  under  and  by  virtue 
of  said  contract.  .  .   . 

The  fourth  and  last  conclusion  of  law  relates  to  the 
damages  which  plaintiff  should  recover.  The  fact  is  found 
that  plaintiff,  in  the  winter  of  1880  and  1881,  could  have 
delivered  said  logs  at  fifty  cents  per  thousand  feet.  The 
objection  is  that  the  measure  of  damages  adopted  by  the 
referee  is  erroneous.  The  damage  reported  by  the  referee 
was  for  the  loss  of  profits,  the  direct  and  natural  result  which 
the  law  presumes,  springing  right  up  under  the  breach  of  the 
contract  complained  of,  in  plaintiff  not  being  allowed  to  fulfil 
his  contract  the  second  winter,  on  the  basis  of  what  the  cost 
to  him  would  have  been  for  deliver}7.  From  the  facts  found 
the  profit  to  him  would  have  been  fifty  cents  per  thousand  feet 
for  the  whole  amount  not  delivered  in  the  winter  of  1879  and 
1880.  It  is  objected  that  the  profits  must  be  ascertained  on 
the  day  of  the  breach  ;  that  to  attempt  to  ascertain  the 
damages  in  any  other  way  would  be  speculative,  uncertain, 
and  conjectural.  The  case  of  Masterton  v.  Mayor  of  Brook- 
h/n  is  cited  as  authorit}- ;  but  an  examination  of  that  case 
shows  that  the  court  made  the  market  price  on  the  da\'  of  the 
breach  of  the  contract  to  govern  in  assessment  of  damages 
to  depend  upon  the  opposite  party  having  elected  to  consider 
the  contract  broken  before  the  arrival  of  the  time  for  full 
performance.  The  facts  of  this  case  were  somewhat  excep- 
tional, there  being  a  claim  for  a  breach  of  a  contract  running 
through  a  period  of  five  }Tears,  of  which  about  one  year  and  a 
half  only  had  expired,  the  court  and  jury  having  no  certain 


UNITED   STATES   v.  BEHAN.  505 

data  upon  which  to  estimate  the  profits  for  the  remaining 
three  }-ears  and  a  half.  That  case  is  not  applicable  here, 
where  the  election  of  the  plaintiff  to  consider  the  contract 
broken  before  arrival  of  the  time  for  its  full  performance  does 
not  appear ;  and  upon  the  facts  found  it  does  appear  that 
there  are  certain  data  for  estimating  the  damages  found. 
The  consideration  of  profits  cannot  be  separated  in  this  case 
from  the  circumstances  under  which  the  work  was  to  be  done, 
and  the  prevention  of  which  constitutes  the  breach  making 
the  defendants  liable. 

There  is  no  element  of  uncertainty  regarding  the  profits 
the  plaintiff  would  have  realized  from  the  performance  of  the 
contract,  and  which  must  govern  in  the  estimate  of  damages. 
There  are  no  contingencies  modifying  or  taking  this  case  out 
of  the  rule  laid  down  b}-  this  court  in  the  case  of  Burrell  v. 
New  York  &  Saginaw  Solar  Salt  Co.,  14  Mich.  34.  See  also 
Loud  v.  Campbell,  26  Mich.  239  ;  McKinnon  v.  McEwan, 
48  Mich.   106. 

There  was  no  error  in  confirming  the  conclusions  of  law 
found  b}-the  referee,  and  the  judgment  rendered  at  the  circuit 
is  affirmed  with  costs. 


UNITED   STATES  v.  BEHAN. 

Supreme  Court  of  the  United  States,  1884.     110  U.  S.  338. 

Bradley,  J.  Behan,  the  appellee  and  claimant,  filed  a 
petition  in  the  court  below,  setting  forth  that  on  the  2Gth  of 
December,  1879,  one  John  Roy  entered  into  a  contract  with 
C.  W.  Howell,  major  of  engineers  of  the  United  States  arm}-, 
to  make  certain  improvements  in  the  harbor  of  New  Orleans 
(describing  the  same),  and  that  the  claimant  and  two  other 
persons  named  became  bondsmen  for  the  faithful  performance 
of  the  work;  that  on  Februaiy  10th,  1881,  the  contract  with 
Roy  was  annulled  by  the  engineer  office,  and  the  bondsmen 
were  notified  that  they  had  a  right  to  continue  the  work  under 


506  CASES  ON  DAMAGES. 

the  contract  if  the}-  desired  to  do  so,  and  that  the  claimant 
complied  with  this  suggestion  and  undertook  the  work  ;  that 
he  went  to  great  expense  in  providing  the  requisite  machinerj', 
materials,  and  labor  for  fulfilling  the  contract,  but  that  in 
September,  1881,  it  being  found,  by  the  report  of  a  board  of 
engineers,  that  the  plan  of  improvement  was  a  failure,  without 
am-  fault  of  the  claimant,  the  work  was  ordered  to  cease  ; 
that  thereupon  the  claimant  stopped  all  operations,  and  dis- 
posed of  the  machinery  and  materials  on  hand  upon  the  best 
terms  possible,  and  sent  to  the  War  Department  an  account 
of  his  outlay  and  expenses,  and  the  value  of  his  own  time, 
claiming  as  due  to  him,  after  all  just  credits  and  offsets,  the 
sum  of  $36,347.94,  for  which  sum  he  prayed  judgment.1 

The  Court  of  Claims  found  the  material  facts  to  be  substan- 
tially as  stated  in  the  petition.  .  .  .  The  court  further  finds 
as  follows  : 

"The  actual  and  reasonable  expenditures  by  the  claimant 
in  the  prosecution  of  his  work,  together  with  his  unavoidable 
losses  on  the  materials  on  hand  at  the  time  of  the  stoppage  by 
the  defendants,  were  equal  to  the  full  amount  claimed  there- 
for in  his  petition,  $33,192.20. 

"  It  does  not  appear  from  the  evidence  thereon  on  the  one 
side  and  the  other  whether  or  not  the  claimant  would  have 
made  an}'  actual  profit  over  and  above  expenditures,  or  would 
have  incurred  actual  loss  had  he  continued  the  work  to  the 
end  and  been  paid  the  full  contract  price  therefor. 

"  CONCLUSION   OF   LAW. 

"Upon  the  foregoing  findings  of  facts  the  court  decides  as 
a  conclusion  of  law  that  the  claimant  is  entitled  to  recover  the 
sum  of  $33,192.20." 

The  government  has  appealed  from  this  decree  and  com- 
plains of  the  rule  of  damages  adopted  by  the  court  below. 
Counsel  contend  that,  by  making  a  claim  for  profits,  the 
claimant  asserts  the  existence  of  the  contract  as  opposed  to 

1  Part  of  the  opinion  is  omitted. 


UNITED  STATES  v.   BEHAN.  507 

its  rescission  ;  and  that  in  such  case,  the  rule  of  damages,  as 
settled  in  Speed's  Case,  8  Wall.  77,  is  "  the  difference  between 
the  cost  of  doing  the  work  and  what  claimants  were  to 
receive  for  it,  making  reasonable  reduction  for  the  less  time 
engaged,  and  for  release  from  the  care,  trouble,  risk,  and 
responsibility  attending  a  full  execution  of  the  contract." 
And  when  such  a  claim  is  made,  they  contend  that  the  burden 
of  proof  is  on  the  claimant  to  show  what  the  profits  would 
have  been  ;  and  as  the  Court  of  Claims  expressly  finds  that 
it  does  not  appear  from  the  evidence  whether  or  not  the 
claimant  would  have  made  any  profits,  or  would  have  incurred 
loss,  therefore  the  claimant  was  not  entitled  to  judgment  for 
any  amount  whatever. 

The  manner  in  which  this  subject  was  viewed  by  the  Court 
of  Claims  is  shown  by  the  following  extract  from  its  opinion  : 

"  Whatever  rule  may  be  adopted  in  calculating  the  damages 
to  a  contractor  when,  without  his  fault,  the  other  party,  dur- 
ing its  progress,  puts  an  end  to  the  contract  before  comple- 
tion, the  object  is  to  indemnify  him  for  his  losses  sustained 
and  his  gains  prevented  b}'  the  action  of  the  part}'  in  fault, 
viewing  these  elements  with  relation  to  each  other.  The 
profits  and  losses  must  be  determined  according  to  the  cir- 
cumstances of  the  case  and  the  subject-matter  of  the  contract. 
The  reasonable  expenditures  already  incurred,  the  unavoidable 
losses  incident  to  stoppage,  the  progress  attained,  the  un- 
finished part,  and  the  probable  cost  of  its  completion,  the 
whole  contract  price,  and  the  estimated  pecuniary  result, 
favorable  or  unfavorable  to  him,  had  he  been  permitted  or 
required  to  go  on  and  complete  his  contract,  may  be  taken 
into  consideration.  Sickels'  Case,  1  C.  Cls.  R.  214  ;  Speed's 
Case,  2  C.  Cls.  R.  429  ;  affirmed  on  appeal,  8  Wall.  77,  and 
7  C.  Cls.  R.  93  ;  Wilder's  Case,  5  C.  Cls.  R.  468  ;  Bulkley's 
Case,  7  C.  Cls.  R.  543  ;  19  Wall.  37  ;  and  9  C.  Cls.  R.  81 ; 
Parish's  Case,  100  U.  S.  500 ;  Field's  Case,  10  C.  Cls.  R.  434  ; 
Moore  &  Krone's  Case,  17  C.  Cls.  R.  17;  Power's  Case,  18 
C.  Cls.  R.  493;  Masterson  v.  Mayor,  &c,  of  Brooklyn,  7 
Hill,  61. 


508  CASES  ON  DAMAGES. 

"The  amount  of  the  claimant's  unavoidable  expenditures 
and  losses  already  incurred  are  set  forth  in  the  findings.  But 
we  can  give  him  nothing  on  account  of  prospective  profits, 
because  none  have  been  proved.  So,  for  the  same  reason, 
we  can  deduct  nothing  from  his  expenditures  on  account  of 
prospective  losses  which  he  might  have  incurred  had  he  not 
been  relieved  from  completing  his  contract.  This  leaves  his 
expenditures  as  the  only  damages  proved  to  have  resulted  to 
him  from  the  defendants'  breach  of  contract,  and  they  are, 
therefore,  the  proper  measure  of  damages  under  all  the 
circumstances  of  the  case." 

We  think  that  these  views,  as  applied  to  the  case  in  hand, 
are  substantially  correct.  The  claimant  has  not  received  a 
dollar,  either  for  what  he  did,  or  for  what  he  expended,  except 
the  proceeds  of  the  property  which  remained  on  his  hands 
when  the  performance  of  the  contract  was  stopped.  Unless 
there  is  some  artificial  rule  of  law  which  has  taken  the  place 
of  natural  justice  in  relation  to  the  measure  of  damages,  it 
would  seem  to  be  quite  clear  that  the  claimant  ought  at 
least  to  be  made  whole  for  his  losses  and  expenditures. 
So  far  as  appears,  they  were  incurred  in  the  fair  endeavor  to 
perform  the  contract  which  he  assumed.  If  they  were  fool- 
ishly or  unreasonably  incurred,  the  government  should  have 
proven  this  fact.  It  will  not  be  presumed.  The  court  finds 
that  his  expenditures  were  reasonable.  The  claimant  might 
also  have  recovered  the  profits  of  the  contract  if  he  had  proven 
that  any  direct,  as  distinguished  from  speculative,  profits 
would  have  been  realized.  But  this  he  failed  to  do  ;  and  the 
court  below  very  properly  restricted  its  award  of  damages  to 
his  actual  expenditures  and  losses. 

The  prima  facie  measure  of  damages  for  the  breach  of  a 
contract  is  the  amount  of  the  loss  which  the  injured  party  has 
sustained  thereby.  If  the  breach  consists  in  preventing  the 
performance  of  the  contract,  without  the  fault  of  the  other 
party,  who  is  willing  to  perform  it,  the  loss  of  the  latter  will 
consist  of  two  distinct  items  or  grounds  of  damage,  namely : 
first,  what  he  has  already  expended  towards  performance  (less 


UNITED   STATES  v.  BEHAN.  509 

the  value  of  materials  on  hand) ;  secondly,  the  profits  that  he 
would  realize  by  performing  the  whole  contract.  The  second 
item,  profits,  cannot  always  be  recovered.  They  may  be  too 
remote  and  speculative  in  their  character,  and  therefore  inca- 
pable of  that  clear  and  direct  proof  which  the  law  requires. 
But  when,  in  the  language  of  Chief  Justice  Nelson,  in  the  case 
of  Masterson  v.  Mayor  of  Brooklyn,  7  Hill,  69,  they  are  "the 
direct  and  immediate  fruits  of  the  contract,"  they  are  free  from 
this  objection  ;  they  are  then  "  part  and  parcel  of  the  contract 
itself,  entering  into  and  constituting  a  portion  of  its  very  ele- 
ments ;  something  stipulated  for,  the  right  to  the  enjoyment 
of  which  is  just  as  clear  and  plain  as  to  the  fulfilment  of  any 
other  stipulation."  Still,  in  order  to  furnish  a  ground  of 
recovery  in  damages,  they  must  be  proved.  If  not  proved, 
or  if  they  are  of  such  a  remote  and  speculative  character  that 
they  cannot  be  legally  proved,  the  party  is  confined  to  his  loss 
of  actual  outlay  and  expense.  This  loss,  however,  he  is 
clearly  entitled  to  recover  in  all  cases,  unless  the  other  party, 
who  has  voluntarily  stopped  the  performance  of  the  contract, 
can  show  the  contrar}*. 

The  rule  as  stated  in  Speed's  case  is  only  one  aspect  of  the 
general  rule.  It  is  the  rule  as  applicable  to  a  particular  case. 
As  before  stated,  the  primary  measure  of  damages  is  the 
amount  of  the  party's  loss  ;  and  this  loss,  as  we  have  seen, 
may  consist  of  two  heads  or  classes  of  damage  —  actual  out- 
la}'  and  anticipated  profits.  But  failure  to  prove  profits  will 
not  prevent  the  party  from  recovering  his  losses  for  actual 
outlay  and  expenditure.  If  he  goes  also  for  profits,  then  the 
rule  applies  as  laid  down  in  Speed's  case,  and  his  profits  will 
be  measured  by  "the  difference  between  the  cost  of  doing  the 
work  and  what  he  was  to  receive  for  it,"  etc.  The  claimant 
was  not  bound  to  go  for  profits,  even  though  he  counted  for 
them  in  his  petition.  He  might  stop  upon  a  showing  of  losses. 
The  two  heads  of  damage  are  distinct,  though  closely  related. 
When  profits  are  sought  a  recovery  for  outlay  is  included  and 
something  more.  That  something  more  is  the  profits.  If  the 
outlay  equals  or  exceeds  the  amount  to  be  received,  of  course 
there  can  be  no  profits. 


510  CASES  ON  DAMAGES. 

When  a  party  injured  by  the  stoppage  of  a  contract  elects 
to  rescind  it,  then,  it  is  true,  he  cannot  recover  any  damages 
for  a  breach  of  the  contract,  either  for  outlay  or  for  loss  of 
profits ;  he  recovers  the  value  of  his  services  actually  per- 
formed as  upon  a  quantum  meruit.  There  is  then  no  ques- 
tion of  losses  or  profits.  But  when  he  elects  to  go  for  damages 
for  the  breach  of  the  contract,  the  first  and  most  obvious 
damage  to  be  shown  is,  the  amount  which  he  has  been  induced 
to  expend  on  the  faith  of  the  contract,  including  a  fair  allow- 
ance for  his  own  time  and  services.  If  he  chooses  to  go 
further,  and  claims  for  the  loss  of  anticipated  profits,  he  may 
do  so,  subject  to  the  rules  of  law  as  to  the  character  of  profits 
which  may  be  thus  claimed.  It  does  not  lie,  however,  in  the 
mouth  of  the  party,  who  has  voluntarily  and  wrongfully  put 
an  end  to  the  contract,  to  say  that  the  party  injured  has  not 
been  damaged  at  least  to  the  amount  of  what  he  has  been 
induced  fairly  and  in  good  faith  to  lay  out  and  expend  (in- 
cluding his  own  services),  after  making  allowance  for  the 
value  of  materials  on  hand ;  at  least  it  does  not  lie  in  the 
mouth  of  the  party  in  fault  to  say  this,  unless  he  can  show 
that  the  expenses  of  the  part}'  injured  have  been  extravagant, 
and  unnecessary  for  the  purpose  of  carrying  out  the  contract. 

It  is  unnecessary  to  review  the  authorities  on  this  subject. 
Some  of  them  are  referred  to  in  the  extract  made  from  the 
opinion  of  the  court  below  ;  others  may  be  found  referred  to 
in  Sedgwick  on  the  Measure  of  Damages,  in  Smith's  Leading 
Cases,  vol.  2,  p.  36,  etc.  (notes  to  Cutter  v.  Powell)  ;  Addison 
on  Contracts,  §§  881,  897.  The  cases  usually  referred  to,  and 
which,  with  many  others,  have  been  carefully  examined,  are 
Planche  v.  Colburn,  5  C.  &  P.  58  ;  S.C8  Bing.  14  ;  Master- 
son  v.  Mayor,  &c,  of  Brooklyn,  7  Hill  (N.  Y.),  61 ;  Goodman 
v.  Pocock,  15  A.  &  E.  576  ;  Hadley  v.  Baxendale,  9  Excheq. 
341 ;  Fletcher  v.  Tayleur,  17  C.  B.  21 ;  Smeed  v.  Ford,  1  El. 
&  El.  602;  Inchbald  v.  Western,  &c,  Coffee  Company,  17 
C.  B.  N.  S.  733;  Griffen  v.  Colver,  16  N.  Y.  489;  and  the 
case  of  United  States  v.  Speed,  before  referred  to. 

It  is  to  be  observed  that  when  it  is  said  in  some  of  the 


BLOOD  v.   WILSON.  511 

books,  that  where  one  party  puts  an  end  to  the  contract  the 
other  party  cannot  sue  on  the  contract,  but  must  sue  for 
the  work  actually  clone  under  it,  as  upon  a  quantum  meruit, 
this  only  means  that  he  cannot  sue  the  party  in  fault  upon  the 
stipulations  contained  in  the  contract,  for  he  himself  has  been 
prevented  from  performing  his  own  part  of  the  contract  upon 
which  the  stipulations  depend.  But  surely,  the  wilful  and 
wrongful  putting  an  end  to  a  contract,  and  preventing  the 
other  party  from  carrying  it  out,  is  itself  a  breach  of  the  con- 
tract for  which  an  action  will  lie  for  the  recovery  of  all  damage 
which  the  injured  party  has  sustained.  The  distinction 
between  those  claims  under  a  contract  which  result  from  a 
performance  of  it  on  the  part  of  the  claimant,  and  those 
claims  under  it  which  result  from  being  prevented  by  the 
other  party  from  performing  it,  has  not  always  been  attended 
to.  The  party  who  voluntarily  and  wrongfully  puts  an  end 
to  a  contract  and  prevents  the  other  party  from  performing 
it,  is  estopped  from  denying  that  the  injured  party  has  not 
been  damaged  to  the  extent  of  his  actual  loss  and  outlay 
fairly  incurred. 


BLOOD   v.   WILSON. 

Massachusetts,  1886.     141  Mass.  25. 

Morton,  C.J.  It  is  well  settled  in  this  Commonwealth, 
that  when  a  special  contract  has  not  been  fully  performed, 
but  the  plaintiff  has  in  good  faith  done  what  he  believed  to  be 
a  compliance  with  the  contract,  and  has  thus  rendered  a 
benefit  to  the  defendant,  he  can  recover  the  value  of  his  ser- 
vices not  exceeding  the  contract  price,  after  deducting  the 
damages  which  the  defendant  has  sustained  by  the  breach  of 
the  stipulations  of  the  contract.  Hay  ward  v.  Leonard,  7  Pick. 
181  ;  Reed  v.  Scituate,  7  Allen,  141  ;  Atkins  v.  Barnstable, 
97  Mass.  428  ;  Denham  v.  Bryant,  139  Mass.  110. 


512  CASES  ON  DAMAGES. 

The  instructions  at  the  trial,  to  which  the  defendant  ex- 
cepted, were  in  compliance  with  this  rule,  and  were  correct. 

Exceptions  overruled.1 


STOWE  v.  BUTTRICK. 

Massachusetts,  1878.     125  Mass.  449. 

Contract  upon  an  account  annexed  for  services  rendered 
as  keeper  of  certain  property  attached  by  the  defendant,  a 
deputy  sheriff.  Answer:  1.  A  general  denial;  2.  That  the 
contract  was  illegal  and  void.'2 

Lord,  J.  The  ruling  of  the  presiding  judge,  that  the  con- 
tract which  the  plaintiff  seeks  to  enforce  is  void  because  of 
illegality,  cannot  be  sustained.  Cutter  v.  Howe,  122  Mass. 
541.  Nor  is  the  position  of  the  defendant  tenable  that, 
inasmuch  as  he  received  no  benefit  from  the  services  of  the 
plaintiff,  the  plaintiff  cannot  recover.  In  an  action  upon  a 
quantum  meruit  for  services  rendered  to  another  upon  his 
express  request,  the  value  of  the  services  is  not  to  be  deter- 
mined by  the  amount  of  benefit  which  the  party  requesting 
them  receives.  If  A  hires  B  to  perform  a  particular  service 
in  a  particular  mode,  the  compensation  is  to  be  determined 
by  the  value  of  the  services,  and  not  by  the  benefit  which  A 
derives  from  it. 

Exceptions  sustained. 

i  But  see  Hay  ward  v.  Leonard,  7  Pick.  181,  187,  where  Parker,  C.J., 
said :  "  The  case  was  not  put  to  the  jury  on  the  ground  of  acceptance  or 
waiver,  but  merely  on  the  question  whether  the  house  was  built  pursuant 
to  the  contract  or  not ;  and  if  not,  the  jury  were  directed  to  consider 
what  the  house  was  worth  to  the  defendant,  and  to  give  that  sum  in 
damages.  We  think  this  is  not  the  right  rule  of  damages,  for  the  house 
might  have  been  worth  the  whole  stipulated  price,  notwithstanding  the 
departures  from  the  contract.  They  should  have  been  instructed  to  deduct 
so  much  from  the  contract  price,  as  the  house  was  worth  less  on  account  of 
these  departures." 

2  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


DERBY  v.  JOHNSON.  51i 


DERBY  v.  JOHNSON. 

Vermont,  1848.     21  Vt.  17. 

Book  account.  Judgment  to  account  was  rendered,  and 
an  auditor  was  appointed,  who  reported  the  facts  substan- 
tially as  follows :  On  the  sixteenth  day  of  March,  1846,  the 
plaintiffs  and  defendants  entered  into  a  written  agreement, 
b}'  which  the  plaintiffs  agreed  to  perform,  in  the  most  sub- 
stantial and  workmanlike  manner,  to  the  acceptance  of  the 
engineer  of  the  Vermont  Central  Railroad  Company,  all  the 
stone  work,  masonry,  and  blasting  on  the  three  miles  of  rail- 
road taken  by  the  defendants,  at  certain  specified  prices  by 
the  cubic  yard.  On  the  twenty-third  day  of  March,  1846, 
the  plaintiffs  commenced  work  under  the  contract,  and  con- 
tinued until  the  twenty-third  day  of  April,  1846,  when  the 
defendant  Johnson  directed  and  requested  the  plaintiffs  to 
cease  labor  and  to  abandon  the  farther  execution  of  the  con- 
tract. In  consequence  of  this  request  and  direction  the  plain- 
tiffs immediately,  on  the  same  day,  ceased  laboring  under  the 
contract  and  abandoned  its  farther  execution.  In  the  after- 
noon of  the  same  day,  and  after  the  men  and  teams  of  the 
plaintiffs  had  been  taken  from  the  work  in  pursuance  of  this 
notice  and  request  of  the  defendants,  the  defendants  did  ad- 
vise, or  request  the  plaintiffs  to  do  something  more  to  a 
culvert,  which  was  partly  finished,  and  which  had  been  that 
day  condemned  by  the  engineer,  so  that  thereby  a  part  of  the 
culvert  might  be  taken  into  the  estimate  of  work  done,  which 
was  to  be  made  by  the  engineer  the  next  day  ;  but  the  plain- 
tiffs declined  so  doing.  From  the  nature  of  the  work,  and 
its  unfinished  state,  at  the  time  the  work  was  discontinued, 
the  value  of  a  very  considerable  portion  of  the  work  performed 
could  not  be  estimated  by  the  prices  specified  in  the  contract. 
The  plaintiffs  presented  an  account  of  the  number  of  days' 

33 


514  CASES  ON  DAMAGES. 

labor  expended  by  themselves  and  the  men  in  their  employ, 
and  of  the  materials  furnished  by  them,  in  the  prosecution  of 
the  work  performed  by  them  under  the  contract,  amounting 
in  the  whole  to  $313.44;  and  the  auditor  found,  that  the 
items  were  reasonably  and  properly  charged.  The  defend- 
ants presented  an  account  in  offset,  which  was  allowed  at 
$15.54.  Upon  these  facts  the  auditor  submitted  to  the  court 
the  question  whether  the  plaintiffs  were  entitled  to  recover, 
and,  if  so,  what  amount.  The  County  Court,  March  Term, 
1848,  —  Bennett,  J.,  presiding,  —  rendered  judgment  for  the 
plaintiffs  for  the  amount  of  their  account,  as  claimed  by  them 
deducting  the  amount  of  the  defendants'  account.  Excep- 
tions by  defendants. 

Hall,  J.1  Treating  the  plaintiffs  as  having  been  prevented 
from  executing  their  part  of  the  contract  by  the  act  of  the 
defendants,  we  think  the  plaintiffs  are  entitled  to  recover,  as 
upon  a  quantum  meruit,  the  value  of  the  services  they  had 
performed  under  it,  without  reference  to  the  rate  of  com- 
pensation, specified  in  the  contract.  They  might  doubt- 
less have  claimed  the  stipulated  compensation,  and  have 
introduced  the  contract  as  evidence  of  the  defendants'  ad- 
mission of  the  value  of  the  services.  And  they  might, 
in  addition,  in  another  form  of  action,  have  recovered 
their  damages  for  being  prevented  from  completing  the 
whole  work.  In  making  these  claims  the  plaintiffs  would  be 
acting  upon  the  contract  as  still  subsisting  and  binding; 
and  they  might  well  do  so ;  for  it  doubtless  continued  binding 
on  the  defendants.  But  we  think  the  plaintiffs,  upon  the 
facts  stated  in  the  report  of  the  auditor,  were  at  liberty  to 
consider  the  contract  as  having  been  rescinded  from  the  be- 
ginning, and  to  claim  for  the  services  they  had  performed, 
without  reference  to  its  terras. 

The  defendants,  by  their  voluntary  act,  put  a  stop  to  the 

execution  of  the  work,  when  but  a   fractional  part  of  that 

which  had  been  contracted  for  had  been  done,  and  while  a 

large  portion  of  that  which  had  been  entered  upon,  was  in 

1  Part  of  the  opinion  is  omitted. 


DERBY  v.  JOHNSON.  515 

such  an  unfinished  condition,  as  to  be  incapable  of  being 
measured  and  its  price  ascertained  by  the  rate  specified  in 
the  contract.  Under  these  circumstances,  we  think  the  de- 
fendants have  no  right  to  say,  that  the  contract,  which  they 
have  thus  repudiated,  shall  still  subsist  for  the  purpose  of 
defeating  a  recovery  by  the  plaintiffs  of  the  actual  amount  of 
labor  and  materials  they  have  expended. 

In  Tyson  v.  Doe,  15  Vt.  571,  where  the  defendant,  after 
the  part  performance  of  a  contract  for  delivering  certain 
articles  of  iron  castings,  prevented  the  plaintiff  from  farther 
performing  it,  the  contract  was  held  to  be  so  far  rescinded  by 
the  defendant,  as  to  allow  the  plaintiff  to  sustain  an  action 
on  book  for  the  articles  delivered  under  it,  although  the  time 
of  credit  for  the  articles,  by  the  terms  of  the  contract,  had 
not  expired.  The  court,  in  that  case,  say,  "  that  to  allow  the 
defendant  to  insist  on  the  stipulation  in  regard  to  the  time  of 
payment,  while  he  repudiates  the  others,  would  be  to  enforce 
a  different  contract  from  that  which  the  parties  entered 
into."  The  claim  now  made  in  behalf  of  the  defendants,  that 
the  rate  of  compensation  specified  in  the  contract  should  be 
the  only  rule  of  recovery,  would,  if  sustained,  impose  upon  the 
plaintiffs  a  contract  which  they  never  made.  They  did,  indeed, 
agree  to  do  all  the  work  of  a  certain  description  on  three 
miles  of  road,  at  a  certain  rate  of  compensation  per  cubic 
yard  ;  but  they  did  not  agree  to  make  all  their  preparations 
and  do  but  a  sixteenth  part  of  the  work  at  that  rate  ;  and 
it  is  not  to  be  presumed  they  would  have  made  any  such 
agreement.  We  are  not  therefore  disposed  to  enforce  such 
an  agreement  against  them. 

The  case  of  Koon  v.  Greenman,  7  Wend.  121,  is  much 
relied  upon  by  the  counsel  for  the  defendants.  In  that  case 
the  plaintiff  had  contracted  to  do  certain  mason  work  at  stip- 
ulated prices,  the  defendant  finding  the  materials.  After  a 
part  of  the  work  had  been  done,  the  defendant  neglecting  to 
furnish  materials  for  the  residue,  the  plaintiff  quit  work  and 
brought  his  action  of  general  assumpsit.  The  court  held  he 
was  not  entitled  to  recover  the  value  of  the  work,  but  only 


516  CASES  ON  DAMAGES. 

according  to  the  rate  specified.  The  justice  of  the  decision  is 
not  very  apparent ;  and  it  does  not  appear  to  be  sustained 
by  the  authorities  cited  in  the  opinion,  —  they  being  all  cases, 
either  of  deviations  from  the  contract  in  the  manner  of  the 
work,  or  delays  of  performance  in  point  of  time.  But  that 
case,  if  it  be  sound  law,  is  distinguishable  from  this  in  at 
least  two  important  particulars.  In  that  case  the  plaintiff 
was  prevented  from  completing  his  contract  b3'  the  mere  neg- 
ligence of  the  defendant ;  in  this  by  his  voluntary  and  posi- 
tive command.  In  that  case  there  does  not  appear  to  have 
been  any  difficulty  in  ascertaining  the  amount,  to  which  the 
plaintiff  would  be  entitled,  according  to  the  rates  specified  in 
the  contract ;  whereas  in  this  it  is  altogether  impracticable 
to  ascertain  what  sum  would  be  due  the  plaintiffs,  at  the  stip- 
ulated prices,  for  the  reason  that  when  the  work  was  stopped 
by  the  defendants,  a  large  portion  of  it  was  in  such  an  un- 
finished state  as  to  be  incapable  of  measurement.  That  case  is 
therefore  no  authority  against  the  views  we  have  already  taken. 
The  judgment  of  the  County  Court  is  therefore  affirmed. 


DOOLITTLE  v.   McCULLOUGH. 
Ohio,  1861.     12  Oh.  St.  360. 

Sutliff,  J.1  The  evidence  is  voluminous,  and  it  might  be 
difficult  for  us  to  determine,  from  the  record,  whether  or  not 
it  warranted  the  conclusion  to  which  the  jury  must  have 
arrived,  not  only  that  the  conduct  of  Bates,  toward  the 
workmen  of  the  plaintiff,  was  improper,  and  induced  them 
to  leave  the  work,  but  also,  that  the  defendants  were  account- 
able for  such  conduct,  from  the  fact  that  Bates  was,  at  the 
time,  their  employee. 

We  have  no  difficulty,  however,  in  coming  to  a  conclusion, 
in  relation  to  the  first  assignment  of  error. 

1  Part  of  the  opinion  is  omitted. 


DOOLITTLE   v.   McCULLOUGH.  517 

The  defendants  below  requested  the  court  to  instruct  the 
jury,  that  if  they  found  the  work  to  have  been  done  under 
the  written  contract  previous  to  the  abandonment  of  the 
contract  by  the  parties  in  November,  1850,  that  the  plain- 
tiff' could  only  recover  for  the  actual  amount  of  the  work 
then  done,  at  the  contract  price.  The  court  refused  to  so 
instruct  the  jury,  but  instructed  them  that,  if  they  believed 
the  contract  was  terminated  by  the  defendants,  against  the 
consent  of  the  plaintiff,  he  would  not  be  confined  to  the  con- 
tract price,  but  might,  in  the  action,  recover  what  the  work 
done  was  actually  worth. 

We  regard  the  exception  to  the  charge  of  the  court,  as 
having  respect  particularly  to  this  part  of  the  charge  ;  and  to 
this  point  our  attention  has  been  more  particularly  given. 

What,  then,  is  the  rule  of  damages,  in  an  action  brought 
upon  a  cause  of  action  arising  under  a  contract  terminated 
by  the  other  party  against  the  will  of  the  party  bringing  the 
action?  And  is  it  true,  that  the  price  of  services  rendered, 
or  goods  delivered  under  a  contract  fixing,  by  its  terms,  such 
price,  is  to  be  in  nowise  thereby  affected,  after  the  contract 
has  been  terminated  by  the  other  party,  against  the  will  of 
the  party  performing? 

This  precise  question,  I  believe,  has  not  been  heretofore 
decided  by  this  court.  In  the  case  of  Taft  v.  Wildman,  15 
Ohio  Rep.  123,  tried  in  this  court  at  the  December  term, 
1846,  the  court  say:  "In  contracts  where  the  precise  sum 
is  fixed  and  agreed  upon  by  the  parties,  as  in  many  actions 
of  assumpsit  and  covenant,  the  jury  are  confined  to  that 
Bum." 

In  the  case  of  Alder  and  another,  assignees  of  Berkill,  a 
bankrupt  v.  Keighley  (H.  T.,  1846),  15  Meeson  &  Welsby, 
117,  Pollock,  C.  B.,  says  :  "  But  there  are  certain  established 
rules  according  to  which  they  [the  jury]  ought  to  find  ;  and 
here,  then,  is  a  clear  rule,  —  that  the  amount  which  would 
have  been  received  if  the  contract  had  been  kept,  is  the 
measure  of  damages  if  the  contract  is  broken."  The  action 
below  was  in  general  assumpsit,  or  upon  an  implied  contract^ 


518  CASES  ON  DAMAGES. 

charging  the  defendant  with  a  breach  of  the  implied  contract, 
and  asking  a  judgment  for  the  resulting  damages.  To  sustain 
his  action  the  plaintiff  proved  the  amount  of  services  by  him 
rendered  for  the  defendants,  at  their  request,  and  also  the 
value  of  the  services  in  the  estimation  of  the  witnesses ;  and 
upon  such  a  state  of  facts,  in  the  absence  of  its  being  shown 
that  there  was  a  special  agreement  between  the  parties  in 
relation  to  the  same,  and  the  amount  to  be  paid  for  the 
services  so  proved  to  have  been  rendered,  the  law  implies 
an  agreement  or  promise,  on  the  part  of  the  defendants,  to  pay 
so  much  to  the  plaintiff  as  the  services  were  reasonably  worth. 
Such  is  presumed  to  have  been  the  mutual  understanding  of 
the  parties  in  the  absence  of  an}-  express  promise.  But  as 
soon  as  it  is  made  to  appear  that  there  was  a  special  con- 
tract between  the  parties,  under  which  the  services  were 
rendered,  the  law  has  respect  to  the  actual  contract,  and 
will  not  presume  or  imply  a  different  one ;  the  object  of 
courts  being  to  enforce,  not  to  make  or  change  the  contracts 
of  parties. 

In  this  view  of  the  case,  whether  the  contract  has  been  fully 
performed  by  the  plaintiff,  or  only  partly  performed,  and 
prevented  by  the  defendant ;  to  obtain  remuneration  for  the 
services  so  rendered,  the  plaintiff  might,  under  our  former 
practice,  either  commence  an  action  of  general  assumpsit, 
to  recover  the  amount  such  services  were  actually  worth, 
or  an  action  of  special  assumpsit,  and  recover  for 
a  breach  of  the  express  contract,  under  which  the 
services  had  been  performed.  The  onby  difference  would 
be,  that  if  the  action  were  commenced  upon  the  ex- 
pressed contract,  the  plaintiff  might  have  to  prove  the 
terms  of  the  contract,  and  the  rendering  of  the  services 
according  to  its  terms ;  whereas,  if  the  action  were  in 
general  assumpsit  the  plaintiff  would  only  be  required  to 
j) rove  the  fact  of  having  rendered  the  services  at  the  instance 
of  the  defendant,  and  the  value  of  the  services  ;  and  it  would 
then  be  incumbent  upon  the  defendants  to  prove  the  special 
contract,  to  take  the  case  out  of  the  implied  contract.     But 


DOOLITTLE  v.  McCULLOUGH.  510 

when  the  special  contract  is  proved,  whether  by  the  plaintiff, 
or  defendant,  under  which  the  services  were  rendered  ;  the 
special,  and  not  the  implied  contract  must  determine  the 
rights  and  liabilities  of  the  parties  arising  in  regard  to 
the  services.  The  price  having  been  determined  and 
mutually  agreed  upon  by  them,  neither  of  the  parties  can 
vary  the  price  so  fixed  by  the  contract.  Nor,  as  to  the  price 
of  the  services  actually  rendered  under  the  contract,  while  in 
force  between  the  parties,  can  it  avail  the  plaintiff,  bringing 
his  action  to  recover  therefor,  that  since  the  rendering  the 
services,  the  defendant  has  put  an  end  to  the  special  contract. 
The  fact  would  still  remain,  that  the  services  were  rendered 
under  a  special  contract,  and  at  the  price  agreed  upon,  and 
expressed  by  the  parties. 

And  if  the  action  upon  the  contract  so  made  by  the  paiiies, 
and  terminated  by  the  defendants  against  the  will  of  the 
plaintiff,  be  brought  to  recover  damages  generally,  the  same 
rule  would  apply,  as  to  the  services  actually  rendered.  The 
part}'  having  rendered  the  services  would  be  entitled  to 
recover  at  the  rate  agreed  upon  and  stipulated  in  the  con- 
tract between  the  parties,  although  of  much  less  value  than 
the  price  expressed  in  the  contract ;  and,  in  like  manner,  the 
plaintiff  would  be  restricted  to  the  amount  stipulated  in  the 
contract  as  the  agreed  price,  although  actually  of  much 
greater  value. 

The  action  of  assumpsit  is  termed  an  equitable  action. 
When  brought  to  recover  damages  for  breach  of  contract, 
whether  express  or  implied,  it  is  always  for  the  recovery  of 
money  which  the  plaintiff,  by  reason  of  such  delinquency  of 
duty  on  the  part  of  the  defendant,  is,  in  equity  and  good 
conscience,  entitled  to  demand  and  receive  of  him.  This  is 
the  argument:  it  is  the  duty  of  parties  to  perform  their  con- 
tracts ;  and  where  one  part}'  has  been  delinquent,  in  the 
performance  of  his  contract,  and  damage  has  in  consequence 
resulted  to  the  other  part}*,  the  party  sustaining  the  damage 
has  his  right  of  action  to  recover  the  damage  from  the 
delinquent  party.      The   actual    damages   resulting   to   the 


520  CASES  ON  DAMAGES. 

plaintiff  from  the  breach  of  the  contract  by  the  defendant  is 
the  amount  of  damage  which  the  defendant  is  liable  to  pay 
and  which  the  plaintiff  is  justly  entitled  to  recover  for  such 
delinquency.  This  damage  so  occasioned  the  other  party, 
by  the  delinquency  of  the  party  failing  to  perform,  may 
consist,  partly  in  a  neglect  to  compensate  the  other  party 
for  the  part  performance,  and  partly  in  terminating  the 
contract,  before  fully  performed  by  the  other  party,  and 
preventing  his  acquiring  the  profit  and  benefit  under  it 
which  he  would  otherwise  have  derived  and  was  legally 
entitled  to ;  or,  the  damage  may  have  resulted  from  either. 
But  it  is  certain  that  where  there  has  been  a  part  perform- 
ance, and  that  part  paid  for,  under  the  contract,  according 
to  its  terms,  and  the  contract  has  then  been  terminated 
wrongfully  by  the  party  so  having  paid,  it  cannot  be  that 
the  termination  of  the  contract  occasions  damage  or  gives 
any  right  of  action  to  the  other  part}'  in  regard  to  the  part  so 
performed  and  paid  for  under  the  contract.  The  damage  in 
such  a  case,  if  any,  arises  from  wrongfully  precluding  the 
other  party  from  performing  and  receiving  pay  for  that  part 
of  the  contract  unperformed  on  his  part.  And  the  question 
of  damage,  in  such  case,  depends  upon  the  terms  of  the 
contract,  and  circumstances  of  the  case.  If  the  proof  shows 
that  the  plaintiff  might  have  derived  profit  from  the  com- 
pletion of  the  contract,  on  his  part,  he  may  be  entitled 
to  recover  what  the  proof  shows  would  have  been  the 
probable  amount  of  the  profit,  which  he  has  so  lost,  as 
damages  to  which  he  is  entitled  for  such  termination  of 
the  contract.  But  where  the  proof  shows  that  the  plaintiff, 
by  fully  performing,  would  have  realized  no  profit,  but 
in  fact  sustained  a  loss,  he  cannot  in  any  sense  be  found 
to  have  sustained  damage,  or  entitled  to  recover  any  sum 
as  damage  for  the  termination  of  the  contract  by  the  other 
party.   .  .  . 

But  a  better  illustration  of  the  correctness  of  the  rule  of 
damage  can  hardly  be  found  than  is  b}'  this  case  presented 
in  the  record  before  us.      The  plaintiff  brought  his  action 


DOOLITTLE  v.   McCULLOUGH.  521 

below  to  recover  the  damages  which  he  had  sustained  from 
the  neglect  of  the  defendants  to  perform  their  part  of  the 
contract.  The  only  right  of  action  asserted  by  the  plaintiff 
in  his  declaration,  was  to  recover  the  damage  which  the  de- 
fendants, by  their  delinquency  in  regard  to  the  contract  sub- 
sisting between  the  parties,  had  occasioned  the  plaintiff.  It 
is  true,  the  plaintiff  below  only  stated  the  performance  of  the 
services  by  himself,  and  complained  of  the  defendants  for  not 
having  paid  him  what  the  law  would  presume  was  agreed 
upon  by  the  parties.  But  when  an  express  agreement  is 
proved  to  have  been  made  by  the  parties,  the  law  will  not 
imply  one  ;  but  looks  to  the  existing  contract  between  the 
parties. 

How,  then,  stood  the  case  between  the  plaintiff  and  defend- 
ants under  that  contract,  as  shown  by  the  proof  upon  the 
trial ;  and  what  damage  was  McCullough  thereby  shown  to 
have  sustained  from  the  delinquency  or  wrong-doing  of  Doo- 
little  &  Chamberlain,  in  regard  to  the  contract  between  the 
parties  ? 

The  written  contract  required  McCullough  to  do  all  the 
excavation  at  eleven  cents  per  cubic  yard.  The  proof  shows 
that  he  proceeded  to  do  the  least  expensive  part  of  the  work, 
the  surface  excavation,  which,  say  the  witnesses,  might  be 
done  at  from  fifty  to  thirty-three  per  cent  of  the  cost  per 
yard,  required  to  do  the  remaining  part  of  the  work  embraced 
in  the  contract.  The  proof  also  showed  that  the  plaintiff  had 
been  fully  paid  the  eleven  cents  per  cubic  yard  for  all  the 
excavation  and  work  by  him  done  under  and  according  to  the 
terms  of  the  written  contract.  But  the  plaintiff,  it  is  true, 
proves  that  the  excavation  which  he  did  under  the  contract 
actually  cost  or  was  worth  from  eighteen  to  twenty  cents  per 
cubic  yard ;  and  that  Doolittle  and  Chamberlain  had  termin- 
ated the  contract  without  his  consent.  In  this  state  of  facts 
the  law  gives  McCullough  this  equitable  action  of  assump- 
sit to  recover  from  Doolittle  and  Chamberlain  the  damage 
which  their  wrongful  termination  or  disregard  of  the  contract 
has  caused  to  him,  McCullough.     But  McCullough  can  only 


522  CASES  ON  DAMAGES. 

recover  the  amount  which  he  shows  he  has  lost  03-  such  delin- 
quency of  Doolittle  and  Chamberlain.  What  then  is  the  loss 
or  damage  which  the  proof  shows  McCullough  sustained  from 
the  contract  having  been  so  terminated?  McCullough's  proof 
is,  that  it  cost  from  eighteen  to  twemVy  cents  to  excavate,  per 
cubic  yard,  that  part  of  the  job  which  he  did  ;  and  all  the 
proof  goes  to  show  that  the  residue  of  the  excavation  would 
cost  from  two  to  three  times  the  amount  per  cubic  yard,  of 
that  aetualby  excavated.  But  the  written  contract,  which  the 
plaintiff  complains  that  the  other  parties  terminated,  without 
his  consent,  required  him  to  do  all  the  excavation  at  eleven 
cents  per  cubic  yard.  And  if  the  plaintiff's  claim  and  proof 
are  entitled  to  respect,  the  excavation  actually  done  was 
worth  from  eighteen  to  twenty  cents  per  cubic  yard,  the  resi- 
due which  the  plaintiff  has  been  so  prevented  from  completing 
at  eleven  cents,  would  cost  from  thirty-eight  to  fifty-seven 
cents  per  cubic  yard.  It  is  shown  by  the  proof  that  McCul- 
lough was  paid  more  than  the  full  average  price  of  eleven 
cents  per  cubic  yard,  for  all  the  excavation  he  did  upon  the 
job  ;  the  only  damage,  therefore,  which  he  could  possibly  be 
entitled  to  recover,  was  the  pecuniary  loss  he  sustained  by 
being  thus  prevented  from  completing  the  residue  of  his  job 
at  a  cost  of  from  thirty-eight  to  fifty-seven  cents  per  cubic 
yard,  and  receiving  therefor  eleven  cents  per  cubic  3'ard. 
This  is  perfectly  evident  in  fact ;  and  it  also  results  from 
making  the  contract  the  measure  of  damages  to  the  same  ex- 
tent intended  b}'  the  parties,  both  at  the  commencement  and 
performance  of  the  work.  And  only  by  reference  to  the  con- 
tract can  the  true  amount  of  damages  suffered  by  the  plaintiff 
be  ascertained. 

The  instruction  given  by  the  court  below  to  the  jury,  that 
the  plaintiff  was  entitled  to  recover  the  actual  cost  of  the 
services  rendered,  regardless  of  the  price  fixed  by  the  express 
contract,  would  allow  the  plaintiff  to  recover  a  large  sum  of 
money  from  the  defendants  without  consideration  and  with- 
out cause.  Indeed,  it  would  allow  the  plaintiff  not  only  to 
recover,  without  any  cause  of  action  being  shown,  but,  in  fact, 


WICKER  v.   HOPPOCK.  523 

his  proof  showed  that  the  termination  of  the  contract  com- 
plained of,  bad,  in  fact,  occasioned  him  no  loss,  but  bad 
actually  saved  him  from  ruinous  loss ;  and  to  recover  dam- 
ages when  he  bad  sustained  none,  but  bad  really  derived  a 
benefit  and  gain. 

The  judgment  of  the   District  Court  must   therefore    be 
reversed. 


WICKER  v.   HOPPOCK. 

United  States  Supreme  Court,  1SG7.     6  Wall.  94. 

Swayne,  J.1  It  is  urged  that  the  court  erred  in  instructing 
the  jury,  that  if  the  plaintiff  was  entitled  to  recover,  the 
measure  of  damages  was  the  amount  of  the  judgments,  with 
interest  and  the  cost. 

The  general  rule  is,  that  when  a  wrong  has  been  done,  and 
the  law  gives  a  remedy,  the  compensation  shall  be  equal  to 
the  injury.  The  latter  is  the  standard  by  which  the  former 
is  to  be  measured.  The  injured  party  is  to  be  placed,  as 
near  as  may  be,  in  the  situation  he  would  have  occupied  if 
the  wrong  had  not  been  committed.  In  some  instances  he  is 
made  to  bear  a  part  of  the  loss,  in  others  the  amount  to  be 
recovered  is  allowed,  as  a  punishment  and  example,  to 
exceed   the   limits  of  a  mere  equivalent. 

It  has  been  held  that,  "  where  a  party  is  entitled  to  the 
benefit  of  a  contract,  and  can  save  himself  from  a  loss 
arising  from  a  breach  thereof,  at  a  trifling  expense  or  with 
reasonable  exertions,  it  is  his  duty  to  do  it ;  and  he  can 
charge  the  delinquent  party  with  such  damages  only,  as 
with  reasonable  endeavors  and  expense  he  could  not  pre- 
vent." Miller  v.  Mariners'  Church,  7  Greenleaf,  56  ;  Russell 
v,  Butterfield,  21  Wendell,  304;  Ketchell  v.  Burns,  24  lb. 
457;  Taylor  v.  Read.  4  Paige,  571;  United  States  v. 
Burnhamj    1    Mason,    57. 

1  Part  of  the  opiniou  is  omitted. 


524  CASES  ON  DAMAGES. 

If  the  contract  in  the  case  before  us  were  one  of  indemnity, 
the  argument  of  the  counsel  for  the  plaintiff  in  error  would  be 
conclusive.  In  that  class  of  cases  the  obligee  cannot  recover 
until  he  has  been  actually  damnified,  and  he  can  recover  only 
to  the  extent  of  the  injury  he  has  sustained  up  to  the  time  of 
the  institution  of  the  suit.  But  there  is  a  well-settled  dis- 
tinction between  an  agreement  to  indemnify  and  an  agree- 
ment to  pay.  In  the  latter  case,  a  recovery  may  be  had  as 
soon  as  there  is  a  breach  of  the  contract,  and  the  measure  of 
the  damages  is  the  full  amount  agreed  to  be  paid. 

In  the  note  of  Sergeant  Williams  to  Cutler  and  others  v. 
Southern  and  others,  it  is  said  that  in  all  cases  of  covenants 
to  indemnify  and  save  harmless,  the  proper  plea  is  non 
damnificatus,  and  that  if  there  is  any  injury,  the  plaintiff 
must  reply  it,  but  that  this  plea  "  cannot  be  pleaded,  when 
the  condition  is  to  discharge  or  acquit  the  plaintiff  from 
such  bond  or  other  particular  thing,  for  the  defendant  must 
set  forth  affirmatively  the  special  manner  of  performance." 
Saunders,  117,  note  1. 

In  Port  v.  Jackson,  17  Johnson,  239,  the  assignee  of  a 
lease  covenanted  to  fulfil  all  the  covenants  which  the  lessee 
was  bound  to  perform.  It  was  held  that  the  agreement  was 
substantially  a  covenant  to  pay  the  rent  reserved,  as  it 
should  accrue ;  that  a  plea  of  non  damnificatus  was  bad,  and 
that  the  assignor  could  recover  the  amount  of  the  rent  in 
arrcar  as  soon  as  a  default  occurred,  without  showing  any 
injury  to  himself  by  the  delinquency  of  the  assignee.  The 
assignee  was  liable  also  to  the  lessor  for  the  same  rent  by 
privity  of  estate.  The  judgment  was  unanimously  affirmed 
by  the  Court  of  Errors. 

In  The  matter  of  Negus,  7  "Wendell,  503,  the  covenant  was 
to  pay  certain  partnership  debts,  and  to  indemnify  the  cove- 
nantee, a  retiring  partner,  against  them.  It  was  held  that  the 
covenant  to  indemnify  did  not  impair  the  effect  of  the  cove- 
nant to  pa}',  and  the  same  principle  was  applied  as  in  the  case 
of  Port  u.  Jackson.  We  might  refer  to  numerous  other 
authorities  to  the  same  effect,  but  it  is  deemed  unnecessary. 


FURNAS  t;.   DURGIN.  525 

In  the  case  before  us,  as  in  the  cases  referred  to,  the 
defendant  made  a  valid  agreement,  in  effect,  to  pay  certain 
specific  liabilities.  They  consisted  of  the  judgments  of 
Hoppock  against  Chapin  &  Co.  If  Wicker  bad  fulfilled, 
the  judgments  would  have  been  extinguished.  As  soon  as 
Hoppock  performed,  the  promise  of  Wicker  became  absolute. 
No  provision  was  made  for  the  non-performance  of  Wicker, 
and  the  further  pursuit  by  Hoppock  of  the  judgment  debtors. 
Indemnity  was  not  named.  That  idea  seems  not  to  have  been 
present  to  the  minds  of  the  parties.  The  purpose  of  Hoppock 
obviously  was  to  get  his  money  without  the  necessity  of  pro- 
ceeding further  against  Chapin  &  Co.  than  his  contract 
required.  There  is  no  ground  upon  which  Wicker  can  prop- 
erly claim  absolution.  He  removed  and  keeps  the  property 
he  was  to  have  bought  in.  The  consideration  for  his  under- 
taking became  complete  when  it  was  exposed  to  sale.  The 
amount  recovered  only  puts  the  other  party  where  he  would 
have  been  if  Wicker  had  fulfilled,  instead  of  violating  the 
agreement. 

The  rule  of  damages  given  to  the  jury  was  correct. 

Judgment  affirmed. 


FURNAS  v.   DURGIN. 

Massachusetts,  1876.     119  Mass.  500. 

Devens,  J.1  The  plaintiff  claimed  to  recover  of  the  de- 
fendant for  breach  of  the  agreement  in  the  deed  of  the  Hyde 
Park  estate  to  the  defendant,  which  was  accepted  by  the 
defendant,  and  contained  this  clause:  "Subject  to  mort- 
gages amounting  to  $6500,  which  the  grantee  hereby  assumes 
and  agrees  to  pay,  and  all  interest  now  due  on  existing  mort- 
gages on  said  property,  together  with  the  taxes  due  on  the 
same." 

1  Part  of  the  opinion  is  omitted. 


526  CASES  ON  DAMAGES. 

For  the  debt  secured  by  the  mortgage  the  plaintiff  was 
liable,  and  the  question  presented  is  whether  the  plaintiff  is 
entitled  to  recover  nominal  damages  only,  as  contended  by 
the  defendant,  or  whether  he  may  recover  the  amount  of  a 
mortgage  upon  the  estate  of  $1500,  with  interest,  which 
neither  party  has  paid.  The  precise  question  involved  here 
was  raised  iu  Brewer  v.  Worthington,  10  Allen,  329,  but  it 
was  not  there  necessary  to  decide  it.  If  the  agreement  is  to 
be  treated  as  one  merely  to  indemnify  the  plaintiff  against 
any  loss  or  damage  by  reason  of  this  mortgage,  it  would  be 
necessary  to  show  that  he  had  been  in  some  measure  damni- 
fied thereby.  Little  v.  Little,  13  Pick.  426.  But  there  is  no 
reason  why  an  agreement  may  not  be  made  which  sh^ll  bind 
the  party  so  contracting  to  pa}r  the  debt  which  another  owes, 
and  thus  relieve  him  or  his  estate  from  it,  and,  if  the  promise 
thus  made  is  not  kept,  why  the  promisee  should  not  recover  a 
sum  sufficient  to  enable  him  so  to  do.  Such  is  the  construc- 
tion to  be  given  to  the  agreement  in  the  case  before  us.  As 
a  consideration  for  the  property  conveyed  to  him,  the  plain- 
tiff conveyed  the  Hyde  Park  estate  to  the  defendant,  who 
contracted  not  to  indemnify  the  plaintiff  against,  but  to  pay 
the  mortgages  upon  it,  and,  if  he  has  failed  to  do  this,  the 
plaintiff  should  be  entitled  to  recover  the  amount  which  the 
defendant  thus  agreed  to  pay.  It  is  a  portion  of  the  consid- 
eration money  due  the  plaintiff,  which  he  was  to  receive  by 
payment  of  a  debt  for  which  he  was  liable,  which  he  thus 
recovers,  when  the  defendant  fails  to  perform  his  promise. 
That  the  plaintiff  should  be  kept  subject  to  a  debt  from 
which  the  defendant  agreed  to  relieve  him  is' a  continuing 
injury  for  which  a  sum  of  money  which  will  enable  him  to 
discharge  it  is  an  appropriate  remedy  in  damages. 

That  a  promise  to  pay  a  debt  due  from  the  promisee,  even 
where  it  has  not  been  paid  by  him,  is  one  upon  which  an 
action  may  be  maintained  and  damages  recovered  to  the 
amount  of  such  debt,  is  held  by  many  authorities.  Holmes 
v.  Rhodes,  1  B.  &  P.  638  ;  Cutler  v.  Southern,  1  Saund.  116, 
Wms.'  note;  Toussaint  v.  Martinnant,  2  T.  R.  100;  Martin 


FURNAS  v.  DURGIN.  527 

v.  Court,  2  T.  R.  G40  ;  Hodgson  v.  Bell,  7  T.  R.  97 ;  Thomas 
v.  Allen,  1  Hill,  145  ;  Loosemore  v.  Radford,  9  M.  &  W.  657  ; 
Penny  v.  Foy,  8  B.  &  C.  11.     In   Lethbridge  v.  Mytton,  2 

B.  &  Ad.  772,  the  defendant,  by  a  settlement  made  upon  his 
marriage,  conveyed  an  estate  upon  certain  trusts,  and  cove- 
nanted with  the  trustees  to  pay  off  incumbrances  on  the  estate 
to  the  amount  of  £19,000,  within  a  year,  and  it  was  held,  upon 
his  failure  to  do  so,  that  the  trustees  were  entitled  to  recover 
the  whole  £19,000  in  an  action  of  covenant,  although  no  pay- 
ment had  been  made  b}'  them,  and  no  special  damage  was 
laid  or  proved.  Whether  the  contracts  in  some  of  these 
cases  were  anything  more  than  contracts  of  indemnity,  and 
therefore  whether  there  could  under  our  decisions  have  been 
any  recovery,  might  perhaps  be  questioned.  Gushing  v. 
Gore,  15  Mass.  G9  ;  Little  v.  Little,  ubi  supra.  That,  how- 
ever, need  not  now  be  considered,  as  we  treat  the  agreement 
before  us  as  one  not  for  indemnity  merely,  but  for  payment. 
Nor  is  it  important  that  the  cases  above  cited  are  those  in 
which  the  promisor  agreed  to  pay  on  a  particular  day,  or 
within  a  specified  time.  That  cannot  affect  their  application. 
An  agreement  to  pay  a  debt,  no  time  being  specified,  is  an 
agreement  to  pay  it  when  due,  or  forthwith,  if  it  be  already 
due.  Here  it  appears  that  the  promise  was  made  on  Aug.  19, 
1872,  that  the  mortgage  debt  which  the  defendant  was  to 
assume  and  pay  became  due  on  Sept.  1,  1872,  and  that  the 
action  was  brought  on  March  10,  1873.  That  an  action  may 
be  brought  upon  a  promise  to  pay  a  debt  due  from  the 
promisee,  and,  although  he  has  not  paid  the  same,  full  dam- 
ages recovered,  is  recognized  clearly  by  the  case  of  Goodwin 
v.  Gilbert,  9  Mass.  510.  The  question  is  not  there  discussed 
in  the  opinion  of  the  court,  which  treats  another  inquiry  as 
the  onby  one  important  in  the  case,  but,  having  disposed  of 
that  in  favor  of  the  plaintiffs,  judgment  was  rendered  for  the 
full  sum. 

There  is  an  embarrassment  undoubtedly  where  the  agree- 
ment is  to  pa}'  a  debt  due  from  the  promisor  as  well  as  the 
promisee.     It  is  similar  to  that  heretofore  considered,  where 


528  CASES  ON  DAMAGES. 

there  is  an  eviction  by  one  holding  a  mortgage  title,  and  the 
covenantee  is  allowed  to  recover  in  damages  the  amount  of 
the  mortgage  upon  which  the  covenantor  is  personally  liable. 
As  the  Hyde  Park  estate,  now  the  property  of  the  defendant, 
is  charged  with  the  payment  of  the  mortgage  debt,  if  the 
plaintiff  should  not  devote  the  sum  recovered  by  him  to  its 
payment,  the  defendant  might  hereafter,  in  order  to  relieve 
his  property,  be  compelled  to  pay  the  amount  a  second  time. 
There  is  no  mode,  at  law,  by  which  this  difficulty  can  be 
avoided,  and  the  plaintiff  enabled  to  receive  the  benefit  of 
his  contract.  Loosemore  v.  Radford,  ubi  supra.  Perhaps  in 
equity,  where  a  proper  case  for  its  interference  was  shown,  a 
remedy  would  be  afforded,  that  would  secure  the  party  pay- 
ing under  such  circumstances  from  having  the  payment  made 
by  him  devoted  to  any  other  object  than  that  which  would 
relieve  him  or  his  estate  from  further  responsibility.  How- 
ever this  may  be,  the  want  of  elasticity  in  the  forms  of  the 
common  law,  which  does  not  enable  us  to  make  such  a  de- 
cree here  as  would  guard  the  rights  of  all  parties,  should  not 
prevent  us  from  giving  to  the  plaintiff  the  benefit  of  the  con- 
tract which  he  has  made,  or  compel  him  to  remain  subject  to 
the  burden  of  the  debt,  which  the  defendant  has  agreed  to 
extinguish.  As  was  suggested  upon  the  other  part  of  the 
case,  the  defendant  may,  if  he  will,  perform  his  agreement 
and  pay  the  debt  at  any  time  before  final  judgment,  and  the 
damages  then  to  be  recovered  will  be  nominal  only. 


HORSFORD  v.   WRIGHT. 

Connecticut,  1786.     Kirby,  3. 

Law,  C.J.  In  actions  on  the  covenant  of  warranty,  the 
constant  rule  of  this  court  has  been  to  ascertain  damages  by 
the  value  of  the  land  at  the  time  of  eviction,  though  the 
British  rule  is  to  give  the  consideration  of  the  deed.  The 
diversity  in  this  respect  between  the  British  practice  and  our6 


STAATS   v.   TEN   EYCK.  529 

is  undoubtedly  founded  in  the  permanent  worth  of  their  lands 
as  an  old  country,  and  the  increasing  worth  of  ours  as  a  new 
country.  And  it  is  supposed  that  the  purchaser  goes  on, 
improves  and  makes  the  land  better  till  he  is  evicted.  But 
querjy  whether  this  reasoning  will  apply  to  an  action  brought 
on  the  covenant  of  seisin  ;  for  in  that  case  the  purchaser  does 
not  wait  till  he  is  evicted,  but  brings  his  action  immediately 
upon  discovery  that  his  title  is  defective  ;  and  it  is  presumed 
he  will  immediately  acquaint  himself  with  the  strength  of 
his  title. 

The  jury  computed  the  damages  by  the  latter  rule,  and 
returned  a  verdict  which  was  accepted  by  the  whole  court. 


STAATS  v.  TEN  EYCK. 

New  York,  1805.     3  Caines,  111. 

On  the  7th  of  January,  1793,  the  testator,  Barent  Ten 
Eyck,  by  indenture  of  release,  in  consideration  of  £700 
granted,  bargained,  and  sold  to  the  plaintiff,  and  one  Dudley 
Walsh,  in  fee,  two  lots  of  ground  in  the  city  of  Albany,  cov- 
enanting, "That  he  the  grantor  was  the  true  and  lawful 
owner;  that  he  was  lawfully  and  rightfully  seised  in  his  own 
right  of  a  good  and  indefeasible  estate  of  inheritance  in  the 
premises;  that  he  had  full  power  to  sell  in  fee-simple,  and 
that  the  grantees  should  forever  peaceably  hold  and  enjov  the 
premises  without  the  interruption  or  eviction  of  any  person 
whatever,  lawfully  claiming  the  same."  In  the  month  of  May 
following,  Walsh,  for  a  valuable  consideration,  conveyed  his 
moiet3'of  these  lots  to  Staats.  who,  on  the  30th  of  October, 

1802,  after  due  possession,  by  lease  and  release,  granted  one  of 
them  to  Margaret  Grim  in  fee,  and  covenanted  to  warrant  and 
defend  her  in  the  peaceable  possession  thereof.     In  August 

1803,  an  ejectment  was  brought  against  Margaret  Chim,  iiv 
which  a  judgment  was  obtained  for  a  moiety  of  the  lot  soH 

34 


530  CASES   ON   DAMAGES. 

to  her,  execution  sued  out,  and  this  followed  by  a  recovery  in 
an  action  for  the  mesne  profits.  The  value  of  the  lot,  from  the 
moiety  of  which  Margaret  Chim  was  thus  evicted,  was  at  the 
time  of  the  sale  by  Ten  Eyck,  £300,  and  that  was  the  con- 
sideration paid  for  it.  Margaret  Chim,  being  thus  evicted, 
brought  her  action  against  the  plaintiff,  and  recovered  for  the 
moiety  she  had  lost. 

Upon  these  facts,  which  were  submitted  without  argument, 
the  following  questions  were  raised  for  the  determination  of 
the  court.  1st.  Whether  the  plaintiff  was  entitled,  under  the 
covenants  in  Ten  Ej'ck's  release,  to  recover  any  more  than  a 
moiety  of  the  consideration  money  paid  for  the  lot  from  which 
Margaret  Chim  was  evicted?  2d.  Whether  the  interest  of 
that  consideration,  and  the  increased  value  of  the  premises 
from  the  date  of  the  deed  to  Margaret  Chim,  ought  to  be 
added?  3d.  Whether  the  plaintiff  was  entitled  to  an}-  retribu- 
tion for  the  costs  and  damages  he  had  sustained  by  the  evic- 
tion and  recoveries  before  mentioned? 

Kent,  C.  J.  This  case  resolves  itself  into  these  two 
points  for  inquiry :  1st.  Whether,  upon  the  covenants,  the 
plaintiff  be  entitled  to  recover  the  value  of  the  moiet}'  of  one 
lot  at  the  time  of  eviction,  or  only  at  the  time  of  the  pur- 
chase, and  to  be  ascertained  by  the  consideration  given? 
2d.  If  the  latter  be  the  rule  of  damages,  then,  whether  the 
plaintiff  be  also  entitled  to  recover  interest  upon  the  purchase- 
money,  and  the  costs  of  the  eviction? 

1.  There  are  two  covenants  contained  in  the  deed  ;  the  one, 
that  the  testator  was  seised  in  fee,  and  had  good  right  to 
convey  ;  the  other,  that  the  grantee  should  hold  the  land  free 
from  any  lawful  disturbance  or  eviction.  The  present  case 
does  not  state  distinctl}T  whether  the  eviction  was  founded 
upon  an  absolute  title  to  a  moiety  of  one  lot,  or  upon  some 
temporary  encumbrance.  But  I  conclude  from  the  manner 
of  stating  the  questions,  and  so  I  shall  assume  the  fact  to  be, 
that  the  testator  was  not  seised  of  the  moiety  so  recovered 
when  he  made  the  conveyance,  and  had  no  right  to  convey 
it.     The  last  covenant  cannot,  then,  in  this  case,  have  any 


STAATS   v.   TEN  EYCK.  531 

greater  operation  than  the  first,  and  I   shall   consider  the 
question  as  if  it  depended  upon  the  first  covenant  merely. 

At  common  law,  upon  a  writ  of  warrantia  chartce,  the  de- 
mandant recovered  in  compensation  only  the  value  for  the 
land  at  the  time  of  the  warranty  made,  and  although  the  land 
had  become  of  increased  value  afterwards,  by  the  discovery 
of  a  mine,  or  by  buildings,  or  otherwise,  yet  the  warrantor 
was  not  to  render  in  value  according  to  the  then  state  of 
things,  but  as  the  land  was  when  the  warranty  was  made. 
Bro.  Abr.  tit.  Voucher,  pi.  69  ;  Ibid.  tit.  Recouver  in  Value, 
pi.  59  ;  22  Vin.  144-146  ;  Tb.  pi.  1,  2,  9  ;  Ub.  pi.  1,  2,  3  ; 
1  Reeves'  Eng.  Law,  448.  This  recompense  in  value,  or 
excambium,  as  it  was  ancientty  termed,  consisted  of  lands 
of  the  warrantor,  or  which  his  heir  inherited  from  him,  of 
equal  value  with  the  laud  from  which  the  feoffee  was  evicted. 
Glanville,  1.  3,  c.  4  ;  Bracton,  384,  a.  b.  That  this  was  the 
ancient  and  uniform  rule  of  the  English  law,  is  a  point,  as  I 
apprehend,  not  to  be  questioned ;  yet,  in  the  early  ages  of 
the  feudal  law  on  the  continent,  as  it  appears  (Feudorum, 
lib.  2,  tit.  25),  the  lord  was  bound  to  recompense  his  vassal 
on  eviction,  with  other  lands  equal  to  the  value  of  the  feud  at 
the  time  of  eviction  ;  feudum  restituat  ejusdem  cestimationis 
quod  erat  tempore  rei  judicatce.  But  there  is  no  evidence 
that  this  rule  ever  prevailed  in  England  ;  nor  do  I  find,  in 
any  case,  that  the  law  has  been  altered  since  the  introduction 
of  personal  covenants,  to  the  disuse  of  the  ancient  warranty. 
These  covenants  have  been  deemed  preferable,  because  they 
secure  a  more  easy,  certain,  and  effectual  recover}'.  But  the 
change  in  the  remedy  did  not  afFect  the  established  measure 
of  compensation,  nor  are  we  at  liberty  now  to  substitute  a 
new  rule  of  damages  from  mere  speculative  reasoning,  and 
that  too  of  doubtful  solidity.  In  warranties  upon  the  sale  of 
chattels  the  law  is  the  same  as  upon  the  sale  of  lands,  and 
the  buyer  recovers  back  only  the  original  price.  1  H. 
Black.  17.  This  is  also  the  rule  in  Scotland,  as  to  chattels. 
1  Ersk.  206.  Our  law  preserves  in  all  its  branches  symmetry 
and  harmony  upon   this   subject.      In  the  modern  case  of 


532  CASES  ON  DAMAGES. 

Flureau  v.  Thornhill,  2  Black.  Rep.  1078,  the  court  of  K.  B. 
laid  down  this  doctrine,  that  upon  a  contract  for  a  purchase 
of  land,  if  the  title  prove  bad,  and  the  vendor  is  without 
fraud  incapable  of  making  a  good  one,  the  purchaser  is  not 
entitled  to  damages  for  the  fancied  goodness  of  his  bargain. 
The  return  of  the  deposit  mone}-,  with  interest  and  costs, 
was  all  that  was  to  be  expected. 

Upon  the  sale  of  lands  the  purchaser  usually  examines  the 
title  for  himself,  and  in  case  of  good  faith  between  the  par- 
ties (and  of  such  cases  only  I  now  speak),  the  seller  discloses 
his  proofs  and  knowledge  of  the  title.  The  want  of  title  is, 
therefore,  usually  a  case  of  mutual  error,  and  it  would  be 
ruinous  and  oppressive  to  make  the  seller  respond  for  any 
accidental  or  extraordinary  rise  in  the  value  of  the  land.  Still 
more  burdensome  would  the  rule  seem  to  be  if  that  rise  was 
owing  to  the  taste,  fortune,  or  luxury  of  the  purchaser.  No 
man  could  venture  to  sell  an  acre  of  ground  to  a  wealthy  pur- 
chaser, without  the  hazard  of  absolute  ruin.  The  hardship 
of  this  doctrine  has  been  abh'  exposed  by  Lord  Kaimes  in 
his  examination  of  a  decision  in  the  Scotch  law.  that  the 
vendor  was  bound  to  pay  according  to  the  increased  value  of 
the  land.     1  Kaimes'  Eq.  284-303  ;  1  Ersk.  206. 

If  the  question  was  now  res  Integra,  and  we  were  in  search 
of  a  fit  rule  for  the  occasion,  I  know  of  none  less  exception- 
able than  the  one  already  established.  By  the  civil  law  the 
seller  was  bound  to  restore  the  value  of  the  subject  at  the 
time  of  eviction,  but  if  the  thing  had  been  from  any  cause 
sunk  below  its  original  price,  the  seller  was  entitled  to  avail 
himself  of  this  and  pay  no  more  than  the  thing  was  then 
worth ;  for  the  Roman  law,  with  its  usual  and  admirable 
equity,  made  the  rule  equal  and  impartial  in  its  operation. 
It  did  not  force  the  seller  to  bear  the  risk  of  the  rise  of  the 
commodity  without  also  taking  his  chance  of  its  fall.  Dig. 
lib.  21,  tit.  2,  1.  78 ;  Ibid.  1.  66,  §  3  ;  Ibid.  1.  64,  §  1.  So  far 
the  rule  in  that  law  appeared  at  least  clear  and  consistent ; 
but  with  respect  to  beneficial  improvements  made  by  the  pur- 
chaser, the  decisions  in  the  Code  and  Pandects  are  jarring 


STAATS  v.  TEN  EYCK.  533 

and  inconsistent  with  each  other,  and  betray  evident  per- 
plexity on  this  difficult  question.  Dig.  lib.  19,  tit.  1,  45, 
§  1  ;  Cod.  lib.  8,  tit.  45,  1.  q.,  and  Perezius  thereon.  The 
more  just  opinion  seems  to  be,  that  the  claimant  himself,  and 
not  the  seller,  ought  to  pay  for  them,  for  nemo  debet  locuple- 
tari  alienci  jacturd,  and  this  rule  has,  according  to  Lord 
Hardwicke,  been  several  times  adopted  and  applied  by  the 
English  Court  of  Chancery.  East  In.  Com.  v.  Vincent,  2  Atk. 
38.  While  on  this  question,  I  hope  it  may  not  be  deemed 
altogether  impertinent  to  observe,  that  in  the  late  digest  of  the 
Hindu  law,  compiled  under  the  auspices  of  Sir  William  Jones, 
the  question  before  us  is  stated  and  solved  with  a  precision 
at  least  equal  to  that  in  the  Roman  code,  and  it  is  in  exact  con- 
formity with  the  English  law.  On  a  sale  declared  void  by 
the  judge  for  want  of  ownership,  the  seller  is  to  pay  the  price 
to  the  buyer,  and  what  price?  asks  the  Hindu  commentator. 
Is  it  the  price  actually  received,  or  the  present  value  of 
the  thing?  The  answer  is,  the  price  for  which  it  was  sold  ;  the 
price  agreed  on  at  the  time  of  the  sale,  and  received  by  the 
seller  ;  and  this  price  shall  be  recovered,  although  the  value 
may  have  been  diminished.  1  Colebrook's  Digest,  478,  479. 
Before  I  conclude  this  head,  I  ought  to  observe,  that  in  the 
present  case  it  does  not  appear  that  any  beneficial  improve- 
ments have  been  made  upon  the  premises  since  the  purchase 
by  the  plaintiff,  and  although  some  of  1113*  observations  have 
been  more  general  than  the  precise  facts  in  the  case  required, 
yet  the  opinion  of  the  court  is  not  intended  to  be  given,  or 
to  reach  beyond  the  case  before  us. 

2.  The  next  point  arising  in  this  case  is,  whether  the 
plaintiff  is  entitled  to  recover  interest  upon  the  purchase- 
money,  and  the  costs  of  eviction  ?  It  is  evident,  that  origin- 
ally the  vendee  recovered  only  what  was  deemed  equivalent  to 
the  purchase-money  without  interest ;  for  he  recovered  other 
lands  equal  only  in  value  to  the  lands  sold  at  the  time  of  the 
sale.  The  rule  would  have  been  the  same  at  this  Any,  had 
not  the  action  for  mesne  profits  been  introduced,  which  lakes 
away  from  the  purchaser  the  intermediate  profits  of  the  land. 


534  CASES  ON  DAMAGES. 

As  long  as  he  was  permitted  to  reap  the  rents  and  profits, 
the}"  formed  a  just  compensation  for  the  use  of  this  money. 
Whether  the  action  for  mesne  profits  has  not  been  carried  too 
far  in  our  law,  03-  extending  it  to  all  cases,  instead  of  con- 
fining it  to  a  mala  fide  possession,  it  is  now  too  late  to  in- 
quire. I  should  have  strong  doubts  at  least,  upon  the  present 
rule,  if  the  question  was  new,  but  considering  it  as  the  estab- 
lished rule,  that  the  action  for  mesne  profits  lies  generally,  I 
am  of  opinion  that  the  seller  is  as  generally  bound  to  answer 
for  the  interest  of  the  purchase-money,  and  that  the  interest 
ought  to  be  commensurate,  in  point  of  time,  with  the  legal 
claim  to  the  mesne  profits.  This  right  to  interest  rests  on 
very  plain  principles.  The  vendor  has  the  use  of  the  pur- 
chase-money, and  the  vendee  loses  the  equivalent  by  the  loss 
of  the  mesne  profits.  The  interest  ought  to  commence  from 
the  time  of  the  loss  of  the  mesne  profits.  That  time  is  not 
specifically  stated  in  the  present  case,  and  the  presumption  is, 
that  they  were  recovered  from  the  date  of  the  plaintiffs  pur- 
chase, and  from  that  time,  I  think,  the  interest  ought  to  be 
calculated  on  the  consideration  sum. 

As  to  the  costs  of  suit  attending  the  eviction  stated  in  the 
case,  it  is  very  clear  that  the  defendants  are  responsible  under 
the  covenant,  for  the  testator  was  bound  to  defend  and  pro- 
tect the  plaintiff  and  his  assigns  in  the  title  he  had  conveyed. 
At  common  law,  he  might  have  been  vouched  to  come  in, 
and  been  substituted  as  a  real  defendant  in  the  suit.  But 
the  defendants  are  not  answerable  for  the  costs  of  the  suit 
for  mesne  profits,  as  there  the  testator  was  not  bound  to 
defend. 

My  opinion  accordingly  is,  that  the  plaintiff  in  the  present 
case  is  entitled  to  recover  the  consideration  paid  for  the  moiety 
of  the  lot  evicted,  together  with  interest  thereon  from  the 
date  of  the  purchase,  and  the  costs  of  suit  in  ejectment  for 
the  recovery  of  the  same. 

Livingston,  J.  To  find  a  proper  rule  of  damage  in  a  case 
like  this  is  a  work  of  some  difficulty  ;  no  one  will  be  entirely 
free  from  objection,  or  not  at  times  work  injustice.    To  refund 


STAATS  v.   TEN   EYCK.  535 

the  consideration,  even  with  interest,  may  be  a  very  inad- 
equate compensation,  when  the  property  is  greatly  enhanced 
in  value,  and  when  the  same  money  might  have  been  laid  out  to 
equal  advantage  elsewhere.    Yet  to  make  this  increased  value 
the  criterion  where  there  has  been  no  fraud,  may  also  be  at- 
tended with  injustice,  if  not  ruin.    A  piece  of  land  is  bought 
solely  for  the  purposes  of  agriculture  ;  by  some  unforeseen 
turn  of  fortune,  it  becomes  the  site  of  a  populous  city,  after 
which  an  eviction  takes  place.     Every  one  must  perceive  the 
injustice  of  calling  on  a  bond  fide  vendor  to  refund  its  present 
value,  and  that  few  fortunes  could  bear  the  demand.     Who, 
for  the  sake  of  one  hundred  pounds,  would  assume  the  hazard 
of  repaying  as  many  thousands,  to  which  value  the  property 
might  rise,  by  causes  not  foreseen  by  either  party,  and  which 
increase  in  worth  would  confer  no  right  on  the  grantor  to  de- 
mand a  further  sum  of  the  grantee.     The  safest  general  rule 
in  all  actions  on  contract,  is  to  limit  the  recovery  as  much  as 
possible  to  an  indemnity  for  the  actual  injury  sustained,  with- 
out regard  to  the  profits  which  the  plaintiff    has  failed  to 
make,  unless  it  shall  clearly  appear,  from  the  agreement,  that 
the  acquisition  of  certain  profits  depended  on  the  defendant's 
punctual   performance,  and   that   he  had  assumed  to  make 
good  such  a  loss  also.     To  prevent  an  immoderate  assess- 
ment of  damages,  when  no  fraud  had  been  practised,  Justi- 
nian directed  that  the  thing  which  was  the  object  of  contract 
should  never  be  valued  at  more  than  double  its  cost.     This 
rule  a  writer  on  civil  law  applies  to  a  case  like  the  one  before 
us  ;  that  is,  to  the  purchase  of  land  which  had  become  of  four 
times  its  original  value  when  an  eviction  took  place  ;  but, 
according  to  this  rule,  the  party  could  not  recover  more  than 
twice  the  sum  he  had  paid.    This  law  is  considered  by  Pothier 
as  arbitrary,  so  far  as  it  confines  the  reduction  of  the  dam- 
ages to  precisely  double  the  value  of  the  thing,  and  is  not 
binding  in  France ;  but  its  principle,  which  does  not  allow  an 
innocent  party   to  be   rendered  liable  beyond  the  sum,   on 
which  he  may  reasonably  have  calculated,  being  founded  in 
natural  law  and  equity,  ought  in  his  opinion  to  be  followed, 


536  CASES  ON  DAMAGES. 

and  care  taken  that  damages  in  the  cases  be  not  excessive. 
Bather  than  adhere  to  the  rule  of  Justinian,  or  leave  the 
matter  to  the  opinion  of  a  jury,  as  to  which  ma}*,  or  may  not 
be  excessive,  some  more  certain  standard  should  be  fixed  on. 
However  inadequate  a  return  of  the  purchase-money  must  be 
in  many  cases,  it  is  the  safest  measure  that  can  be  followed 
as  a  general  rule.  This  is  all  that  one  party  has  received,  and 
all  the  actual  injury  occasioned  by  the  other.  I  speak  now 
of  a  case,  and  such  is  the  present,  where  the  grantee  has  not 
improved  the  property  by  buildings  or  otherwise,  but  where 
the  land  has  risen  in  value  from  extensive  causes.  What 
may  be  a  proper  course,  when  dwelling-houses  or  other  build- 
ings, and  improvements  have  been  erected,  we  are  not  now 
determining.  Why  should  a  purchaser  of  land  recover  more 
than  he  has  paid,  any  more  than  the  vendee  of  a  house  or  a 
ship?  If  these  articles  rise  in  value,  the  vendors  would 
hardly,  if  there  be  no  fraud,  be  liable  to  damages  beyond  the 
prices  the}*  had  received  with  interest  and  costs,  unless  the 
plaintiffs  could  show  some  further  actual  injury  which  they 
had  sustained  in  consequence  of  the  bargain.  The  English 
books  afford  but  little  light  on  this  point,  although  it  is  un- 
derstood to  be  the  rule  in  Great  Britain  to  give  only  the  con- 
sideration of  the  deed.  The  only  thing  to  be  found  any  ways 
relating  to  the  subject,  is  in  the  Year  Books  in  Hilary  Term, 
6  Edw.  II.,  part  1,  187.  It  is  there  said,  that  in  a  writ  of 
dower  after  the  lands  had  been  improved  by  the  feoffee,  they 
shall  be  extended  or  set  off  to  the  widow,  according  to  the 
value  at  the  time  of  alienation  ;  and  the  reason  assigned  by 
Hargrave  in  his  notes  on  Coke  on  Littleton,  which  is  not, 
however,  found  in  the  Year  Books,  is,  "  that,  the  heir  not 
being  bound  to  warrant,  except  according  to  the  value  of  the 
land  at  the  time  of  the  feoffment,  it  is  unreasonable  the 
widow  should  recover  more  of  the  feoffee  than  he  could,  in 
case  of  eviction,  of  the  feoffor."  In  Connecticut,  on  the  con- 
trary, damages  are  ascertained  by  the  value  at  the  time  of 
eviction,  because  of  land's  increasing  worth,  which  is  the 
very  reason,  perhaps,  it  should  be  otherwise.     And  although 


STAATS   v.   TEN   EYCK.  537 

the  English  practice  be  adverted  to  by  the  court  in  giving  its 
opinion,  it  is  supposed  to  be  founded  on  the  permanent  value 
of  their  lands ;  but  when  we  recollect  that  this  has  been  the 
rule  in  Great  Britain,  at  least  from  the  commencement  of  the 
fourteenth  century,  since  which  time  lands  have  greatly  ad- 
vanced in  price,  we  must  attribute  its  origin  to  some  other 
cause  ;  probabby  to  its  intrinsic  justice  and  merit.  Even  in 
Connecticut,  the  rule  applies  only  to  actions  on  covenant  of 
warranty,  and  probably  not  to  those  on  covenant  of  seisin, 
because,  in  the  latter  case,  it  is  supposed  the  party  may  im- 
mediately acquaint  himself  with  the  strength  of  his  title,  an(> 
bring  his  action  as  soon  as  he  discovers  it  is  defective.  Thia 
reason  is  not  very  satisfactorv,  for  with  all  his  diligence  a  lono- 
time  may  elapse  before  his  title  is  called  in  question,  or  doubts 
or  suspicions  raised  about  its  validity. 

Without  saying,  then,  what  ought  to  be  the  rule,  where  the 
estate  has  been  improved  after  purchase,  my  opinion  is,  that 
where  there  has  been  no  fraud,  and  none  is  alleged  here,  the 
party  evicted  can  recover  only  the  sum  paid,  with  interest 
from  the  time  of  payment,  where,  as  is  also  the  case  here, 
the  purchaser  derived  no  benefit  from  the  property  owing  to 
a  defective  title.  The  plaintiff  must  also  be  reimbursed  the 
costs  sustained  by  the  action  of  ejectment.  It  was  his  duty 
to  defend  the  property,  and  the  costs  to  which  he  has  been 
exposed  being  an  actual,  not  an  imaginary  loss,  arising  from 
the  defendant's  want  of  title,  he  ought  to  be  made  whole. 
In  costs  are  included  reasonable  fees  of  counsel,  as  well  as 
those  which  are  taxable.  If  a  grantee  be  desirous  of  receiv- 
ing the  value  of  land  at  the  time  of  eviction,1  he  may  by  apt 
covenants  in  the  deed,  if  a  grantor  will  consent,  secure  such 
benefit  to  himself. 

The  other  judges  concurred. 

Judgment  for  the  plaintiff. 

1  The  damages  under  the  covenants  of  seisin  and  for  quiet  enjoyment 
are  settled  to  he  limited  by  the  consideration  money  paid,  the  interest  upon 
it,  costs  of  eviction,  and  those  of  the  suit  brought ;  for  improvements  made, 


538  CASES  ON  DAMAGES. 

FLUREAU  v.   THORNHILL. 

Common  Pleas,  1776.     2  VV.  Bl.  1078. 

The  plaintiff  bought  at  an  auction  a  rent  of  £26  Is.  per 
unnurn  for  a  term  of  thirty-two  years,  issuing  out  of  a  lease- 
hold house,  which  let  for  £31  6.s.  The  sale  was  on  the  10th 
of  October,  1775.  The  price  at  which  it  was  knocked  down 
to  him  was  £270,  and  he  paid  a  deposit  of  20  per  cent,  or 
£54.  On  looking  into  the  title,  the  defendant  could  not  make 
it  out;  but  offered  the  plaintiff  his  election,  either  to  take 
the  title  with  all  its  faults,  or  to  receive  back  his  deposit  with 
interest  and  costs.  But  the  plaintiff  insisted  on  a  further  sum 
for  damages  in  the  loss  of  so  good  a  bargain  ;  and  his  attorney 
swore  he  believed  the  plaintiff  had  been  a  loser  by  selling  out 
of  the  stocks  to  pay  the  purchase  money,  and  their  subse- 
quent rise  between  the  3d  and  the  10th  of  November;  but 
named  no  particular  sum.  Evidence  was  given  by  the  de- 
fendant, that  the  bargain  was  by  no  means  advantageous,  all 
circumstances  considered  ;  and  the  auctioneer  proved  that  he 
had  orders  to  let  the  lot  go  for  £250.     The  defendant  had 

and  the  increased  value  of  the  property,  a  recovery  cannot  be  had.  Pitcher 
v.  Livingston,  4  Johns.  Rep.  1 ;  Marston  v.  Hobbs,  2  Mass.  Rep.  433. 
Where  the  plaintiff  has  not  been  evicted,  but  has  continued  in  possession 
and  received  mesne  profits  to  the  day  of  action  brought,  interest  for  only 
six  years  will  be  allowed.  Caulkin  and  others  v.  Harris,  9  Johns.  Rep. 
325.  Under  the  covenant  of  "free  from  incumbrances,"  an  antecedent 
mortgage  is  a  breach,  and  the  plaintiff  will  be  entitled  to  recover  his  con- 
sideration money,  interest,  costs  of  defending  himself  in  the  suit  by  the 
mortgagee,  and  those  of  the  action  on  the  covenant.  Waldo  v.  Long,  7 
Johns.  Rep.  1 73.  If  there  has  not  been  any  eviction,  the  damages  will  be 
only  nominal;  but  if  the  mortgage  has  been  extinguished  by  the  plaintiff, 
the  sum  disbursed  for  that  purpose,  interest,  and  costs,  will  be  the  meas- 
ure. Prescott  v.  Trueman,  4  Mass.  Rep.  627.  It  seems  to  be  admitted  in 
the  case  last  cited,  that  should  a  plaintiff,  under  the  circumstances  detailed 
in  it,  be  allowed  to  recover  his  consideration  money,  he  would  be  entitled 
to  hold  the  land  also;  but  may  it  not  be  supposed  that  in  such  a  case 
equity  would  deem  him  a  trustee  for  his  grantor,  and  oblige  him  to 
reconvey  ?    [Reporter's  note. 


BAIN  v.  FOTHERGILL.  .^39 

paid  the  deposit  and  interest,  being  £54  15s.  6d.,  into  court ; 
but  the  jury  gave  a  verdict,  contrary  to  the  directions  of  De 
Grey,  C  J.,  for  £74  15s.  6d. ,  allowing  £20  for  damages. 

Davy  moved  for  a  new  trial,  against  which  Glyn  showed 
cause ;  and  by 

De  Grey,  C.  J.  I  think  the  verdict  wrong  in  point  of  law. 
Upon  a  contract  for  a  purchase,  if  the  title  proves  bad,  and 
the  vendor  is  (without  fraud)  incapable  of  making  a  good  one, 
I  do  not  think  that  the  purchaser  can  be  entitled  to  any  dam- 
ages for  the  fancied  goodness  of  the  bargain,  which  he  sup- 
poses he  has  lost. 

Gould,  J.,  of  the  same  opinion. 

Blackstone,  J.,  of  the  same  opinion.  These  contracts  are 
merely  upon  condition,  frequently  expressed,  but  always  im- 
plied, that  the  vendor  has  a  good  title.  If  he  has  not,  the 
return  of  the  deposit,  with  interest  and  costs,  is  all  that  can 
be  expected.  For  curiosity,  I  have  examined  the  prints  for 
the  price  of  stock  on  the  last  3d  of  November,  when  three 
per  cent's  sold  for  87^.  About  £310  must  therefore  have 
been  sold  to  raise  £270.  And  if  it  costs  £20  to  replace  this 
stock  a  week  afterwards  (as  the  verdict  supposes),  the  stocks 
must  have  risen  near  seven  per  cent  in  that  period,  whereas 
in  fact  there  was  no  difference  in  the  price.  Not  that  it  is 
material ;  for  the  plaintiff  had  a  chance  of  gaining  as  well  as 
losing  by  a  fluctuation  of  the  price. 

Nares,  J.,  hesitated   at  granting  a  new  trial;  but  next 
morning  declared  that  he  concurred  with  the  other  judges. 
Mule  absolute  for  a  new  t?-ial,  paying  the  costs. 


BAIN  v.   FOTHERGILL. 
House  of  Lords,  1874.     L.  R.  7  II.  L.  158. 

This  was  a  writ  of  error  on  a  judgment  of  the  Exchequer 
Chamber,  which  had  affirmed  a  previous  judgment  of  the 
Court  of  Exchequer  (Law  Rep.  6  Ex.  59)  in  an  action 
brought  bjT  Bain  and  Paterson  to  recover  damages  for  the 


540  CASES   ON   DAMAGES. 

breach  of  an  agreement,  dated  the  17th  of  October,  1867,  by 
which  Fothergill  and  Hankey  undertook  to  sell,  and  trans- 
fer, to  Bain  and  Paterson  their  interest  in  a  certain  mining 
royalty  in  the  county  of  Cumberland,  known  as  "  Miss 
Walter's  Royalty."  1 

Lord  Chelmsford.2  My  Lords,  this  appeal  brings  in 
review  before  your  Lordships  the  case  of  Flureau  v.  Thorn- 
hill  and  other  cases  which  have  engrafted  exceptions  upon 
it ;  and  the  first  question  to  be  considered  is  whether  that 
case  was  rightly  decided.  The  decision  took  place  very 
nearly  a  century  ago,  in  the  year  1775,  and  has  been  followed 
ever  since ;  not,  however,  without  an  occasional  expression 
of  doubt  as  to  its  soundness.  Should  your  Lordships  happen 
to  share  in  this  doubt,  you  would  be  extremely  reluctant  to 
disturb  the  rule  which  it  laid  down  for  the  assessment  of 
damages  upon  contracts  for  the  sale  of  real  estates,  and 
which  has  been  so  long  acted  upon,  unless  you  were  clearby 
convinced  that  it  is  erroneous  and  ought  no  longer  to  be 
maintained. 

Now,  the  rule  established  by  Flureau  v.  Thornhill  is,  that 
upon  a  contract  for  the  purchase  of  a  real  estate,  if  the  ven- 
dor, without  fraud,  is  incapable  of  making  a  good  title,  the 
intended  purchaser  is  not  entitled  to  an}'  compensation  for 
the  loss  of  his  bargain.  The  case  is  very  shortly  reported. 
Lord  Chief  Justice  De  Grey  merely  laid  down  the  rule,  with- 
out giving  any  reason  for  it.  But  Mr.  Justice  Blackstone 
said  this:  "  These  contracts  are  merely  upon  condition  fre- 
quently expressed,  but  always  implied,  that  the  vendor  has  a 
good  title." 

The  rule  and  the  reason  for  it  have  been  adopted  and  fol- 
lowed in  subsequent  cases.  In  Walker  v.  Moore,  10  B.  &  C. 
416,  where  the  plaintiff  contracted  with  the  defendant  for  the 
purchase  of  a  real  estate  ;  the  vendor,  acting  bond  Jide,  de- 
livered an  abstract  showing  a  good  title,  and  the  plaintiff, 

1  The  statement  of  facts,  and  the  answers  of  the  judges  to  the  que* 
tions  of  the  Lords,  are  omitted. 

2  The  concurring  opinion  of  Lord  Hatherley  is  omitted. 


BAIN  v.  FOTHERGILL.  541 

before  he  compared  it  with  the  original  deeds,  contracted  to 
sell  several  portions  of  the  propert}'  :it  a  considerable  profit. 
Upon  an  examination  of  the  abstract  with  the  deeds  it  was 
found  that  the  title  was  defective.  The  plaintiff  refused  to 
complete  his  purchase,  and  brought  his  action  claiming, 
amongst  other  damages,  the  profit  that  would  have  accrued 
to  him  from  the  re-sale  of  the  property.  It  was  held  that  he 
was  not  entitled  to  these  damages.  Mr.  Justice  Parke  said  : 
"  A  jury  ought  not,  in  the  case  of  a  vendor  in  possession,  to 
give  an}'  other  damages  in  consequence  of  a  defect  being 
found  in  the  title,  than  those  which  were  allowed  in  Flureau 
v.  Thornhill,  which  was  recognized  in  Johnson  v.  Johnson,  3 
B.  &  P.  162;  Bratt  v.  Ellis,  Sugd.  V.  &  P.  11th  ed.  Ap. 
No.  4,  and  Jones  v.  Dyke,  Id.  No.  5.  In  the  absence  of  an}' 
express  stipulation  about  it,  the  parties  must  be  considered 
as  content  that  the  damages  in  the  event  of  the  title  proving 
defective  shall  be  measured  in  the  ordinary  way,  and  that 
excludes  the  claim  of  damages  on  account  of  the  supposed 
goodness  of  the  bargain." 

The  same  learned  judge  recognized  the  authority  of  Flureau 
v.  Thornhill  in  the  case  of  Robinson  v.  Harman,  1  P^x.  855. 
He  there  said  :  "  The  case  of  Flureau  v.  Thornhill  qualified 
the  rule  of  the  common  law  that  where  a  party  sustains  a  loss 
b}T  reason  of  a  breach  of  contract  he  is,  so  far  as  money  can 
do  it,  to  be  placed  in  the  same  situation  with  respect  to  dam- 
ages as  if  the  contract  had  been  performed."  Again  in 
Pounsett  v.  Fuller,  17  C.  B.  6G0,  the  court,  following  the  rule 
in  Flureau  v.  Thornhill,  held  that  where  a  vendor  failed  to 
make  a  good  title  pursuant  to  his  contract,  the  purchaser  (in 
the  absence  of  fraud  or  misrepresentation  on  the  part  of  the 
vendor)  was  not  entitled  to  damages  for  the  loss  of  his  bar- 
gain. Mr.  Justice  Cresswell,  in  delivering  his  opinion,  said  : 
"We  are  not  called  upon  here  to  investigate  the  grounds  upon 
which  the  decision  in  Flureau  v.  Thornhill  proceeded,  or  to 
pronounce  any  opinion  as  to  the  wisdom  or  the  expediency  of 
the  rule  there  laid  down.  It  is  enough  for  us  to  say  that  it 
has  been  received  and  acted  upon  in  too  many  subsequent 


542  CASES  ON  DAMAGES. 

cases  to  allow  us  now  to  call  it  in  question."  And  in  the 
recent  case  of  Sikes  v.  Wild,  the  Court  of  Queen's  Bench 
(1  B.  &  S.  587)  and  the  Court  of  Exchequer  Chamber  (4  B. 
&  S.  421)  adopted  the  rule  and  acted  upon  it. 

In  a  more  recent  case  of  Engel  v.  Fitch,  Law  Rep.  3  Q  B. 
314,  in  error,  4  Id.  659,  to  which  I  shall  presently  have  occa- 
sion more  particularly  to  refer,  Lord  Chief  Justice  Cockburn, 
in  an  elaborate  judgment,  expressed  his  opinion  that  the 
case  of  Flureau  v.  Thornhill  was  unsatisfactory,  and  gave  his 
sanction  to  Lord  Chief  Justice  Abbott's  doubt  as  to  the 
soundness  of  the  decision  in  that  case. 

There  is,  perhaps,  some  difficulty  in  ascertaining  the  exact 
grounds  of  the  judgment  in  Flureau  v.  Thornhill ;  but,  in 
addition  to  those  which  have  been  previously  assigned,  it 
seems  to  me  that  the  following  considerations  ma}'  be  sug- 
gested as  in  some  degree  supporting  the  correctness  of  the 
decision:  "The  fancied  goodness  of  the  bargain"  must  be 
a  matter  of  a  purely  speculative  character,  and  in  most  cases 
would  probably  be  very  difficult  to  determine,  in  consequence 
of  the  conflicting  opinions  likeby  to  be  formed  upon  the  sub- 
ject ;  and  even  if  it  could  be  proved  to  have  been  a  beneficial 
purchase,  the  loss  of  the  pecuniary  advantage  to  be  derived 
from  a  re-sale  appears  to  me  to  be  a  consequence  too  remote 
from  the  breach  of  the  contract.  I  am  aware  that  in  Engel 
v.  Fitch,  where,  after  the  contract  and  before  the  breach  of 
it,  the  purchaser  contracted  for  a  re-sale  at  an  advance  of 
£105,  the  Court  of  Queen's  Bench  and  the  Court  of  Ex- 
chequer Chamber,  though  pressed  with  the  decision  in  Hadley 
v.  Baxendale,  9  Ex.  341,  held  that  "if  an  increase  in  value 
has  taken  place  between  the  contract  and  the  breach,  such 
an  increase  may  be  taken  to  have  been  in  the  contemplation 
of  the  parties  within  the  meaning  of  that  case."  But  it  must 
be  borne  in  mind  that  this  question  as  to  damages  depends, 
as  Baron  Alderson  said,  in  Hadley  v.  Baxendale,  upon  what 
"  may  reasonabty  be  supposed  to  have  been  in  the  contem- 
plation of  both  parties  at  the  time  they  made  the  contract,  as 
the  probable  result  of  the  breach  of  it."     Now,  although  the 


BAIN  v.  FOTHERGILL.  543 

purchaser  in  Engel  v.  Fitch,  when  he  entered  into  the  con- 
tract, may  have  contemplated  a  re-sale  at  an  advance,  it  is 
not  at  all  likely  that  the  loss  of  this  profit  should  have  oc- 
curred to  the  vendor  as  the  probable  result  of  the  breach  of 
his  contract.  The  judges  were  no  doubt  influenced  Dy  the 
fact  of  the  profitable  re-sale  having  actually  taken  place,  and 
were,  in  cousequence,  drawn  aside  from  considering  what 
must  have  been  in  the  minds  of  both  parties  at  the  precise 
time  when  they  made  the  contract. 

The  decision  in  Flureau  v.  Thornhill  derives  great  addi- 
tional authority  from  the  opinion  of  Lord  St.  Leonards,  who, 
in  his  work  on  the  Law  of  Vendors  and  Purchasers,  14th  ed., 
p.  360,  considers  that  it  was  rightly  decided. 

The  almost  unanimous  approval  of  the  decision  in  Flureau  v. 
Thornhill  was  broken  in  upon  by  an  expression  of  disappro- 
bation from  Chief  Justice  Abbott  in  the  case  of  Hopkins  v. 
Grazebrook,  6  B.  &  C.  31,  to  which  I  have  already  alluded. 
He  there  said  :  "  Upon  the  present  occasion  I  will  onl}-  say, 
that  if  it  is  advanced  as  a  general  proposition  that  where  a 
vendor  cannot  make  a  good  title  the  purchaser  shall  recover 
nothing  more  than  nominal  damages,  I  am  by  no  means  pre- 
pared to  assent  to  it.  If  it  were  necessary  to  decide  that 
point  I  should  desire  to  have  time  for  consideration."  As 
the  case  of  Hopkins  v.  Grazebrook  was  one  which,  according 
to  the  opinion  of  the  court,  was  not  within  the  operation  of 
the  rule  in  Flureau  v.  Thornhill,  there  was  no  occasion  for 
this  passing  reflection  upon  that  case,  which  had  been  then 
silently  acquiesced  in  for  fifty  years. 

In  Hopkins  v.  Grazebrook,  a  person  who  had  contracted 
for  the  purchase  of  an  estate,  but  had  not  obtained  a  conve}- 
ance,  put  up  the  estate  for  sale  in  lots  by  auction,  and  en- 
gaged to  make  a  good  title  by  a  certain  day,  which  he  was 
unable  to  do,  as  his  vendor  never  made  a  conveyance  to  him, 
and  it  was  held  that  a  purchaser  of  certain  lots  at  the  auction 
might,  in  an  action  for  not  making  a  good  title,  recover  not 
only  the  expenses  which  he  had  incurred,  but  also  damages 
which  he  sustained  by  not  having  the  contract  carried  into 


544  CASES  ON  DAMAGES. 

effect.  Chief  Justice  Abbott  said  :  "  The  defendant  had  un- 
fortunately put  the  estate  up  to  auction  before  he  got  a  con- 
veyance. He  should  not  have  taken  such  a  step  without 
ascertaining  that  he  would  be  in  a  situation  to  offer  some 
title,  and  having  entered  into  a  contract  to  sell  without  the 
power  to  confer  even  the  shadow  of  a  title,  I  think  he  must 
be  responsible  for  the  damage  sustained  bjr  a  breach  of  bis 
contract."  And  Justice  Bayley  said  :  "  The  case  of  Flureau 
v.  Thornhill  is  very  different  from  this,  for  here  the  vendor 
had  nothing  but  an  equitable  title." 

The  decision  itself  in  Hopkins  v.  Grazebrook  cannot  be 
supported.  The  seller  in  that  case  had  undoubtedby  an 
equitable  estate  in  respect  of  which  he  had  a  right  to  contract. 
Therefore  the  language  of  Chief  Justice  Abbott,  that  "  the 
defendant  had  entered  into  a  contract  to  sell  without  the 
power  to  confer  even  the  shadow  of  a  title,"  is  not  warranted 
by  the  circumstances  of  the  case,  as  the  defendant  could  cer- 
tainty have  assigned  his  equitable  estate  ;  and  thus  the  sole 
ground  upon  which  he  held  him  responsible  for  damages  en- 
tirely failed.  But  although  the  facts  in  Hopkins  v.  Graze- 
brook  did  not  justify  the  decision,  3-et  the  case  has  always 
been  treated  as  having  introduced  an  exception  to  the  rule  in 
Flureau  v.  Thornhill,  and  as  having  withdrawn  from  its  oper- 
ation a  class  of  cases  where  a  person,  knowing  that  he  has 
no  title  to  real  estate,  enters  into  a  contract  for  the  sale  of  it. 
It  is  not  correct  to  say,  with  Lord  St.  Leonards  in  his  Ven- 
dors and  Purchasers,  14th  ed.  359,  that  Hopkins  v.  Grazebrook 
has  not  been  followed.  It  has  been  recognized  in  several  cases 
since,  and  in  one  to  which  I  shall  presently  refer  it  has  been  ex- 
pressly followed.  In  Robinson  v.  Harman,  1  Ex.  850,  already 
mentioned  as  having  sanctioned  the  decision  in  Flureau  v. 
Thornhill,  Baron  Parke  said:  "The  present  case  comes 
writhin  the  rule  of  the  common  law,  and  I  cannot  distinguish 
it  from  Hopkins  v.  Grazebrook."  And  Baron  Alderson  and 
Baron  Piatt  expressed  the  same  opinion.  In  Pounsett  v. 
Fuller,  Hopkins  v.  Grazebrook  was  treated  as  a  valid  authority 
b}r  all  the  judges,  the  question  which  they  considered  being 


BAIN   v.   FOTHERGILL.  545 

whether  the  case  fell  within  Flureau  v.  Thornhill,  or  the 
exception  in  Hopkins  v.  Grazebrook,  and  they  decided  that 
it  was  within  the  former  case. 

But  in  the  case  of  Engel  v.  Fitch  the  Court  of  Queen's 
Bench,  Law  Rep.  3  Q.  B.  314,  and  afterwards  the  Exchequer 
Chamber,  Law  Rep.  i  Q.  B.  659,  664,  proceeded  expressly  on 
the  cases  of  Hopkins  v.  Grazebrook  and  Robinson  v.  Harman, 
the  Chief  Baron  quoting  the  very  words  of  the  Lord  Chief 
Justice,  and  relying  on  those  cases.     In  that  case  the  mort- 
gagees of  a  house  sold  it  by  auction  to  the  plaintiff,  the  par- 
ticulars of  sale  stating  that  possession  would  be  given  on 
completion  of  the  purchase.     The  purchaser  re-sold  the  house 
at  an  advance  in  the  price  to  a  person  who  wanted  it  for  im- 
mediate occupation.     The  mortgagor  refused  to  give  up  the 
possession.     The  mortgagee  could  have  ousted  him  by  eject- 
ment, but  refused  to  do  so  on  the  ground  of  the  expense. 
The  purchaser  brought  an  action  upon  the  contract  of  sale, 
and  it  was  held,  that  as  the  breach  of  contract  arose  not  from 
inability  of  the  defendants  to  make  a  good  title,  but  from  their 
refusal  to  take  the  necessary  steps  to  give  the  plaintiff  pos- 
session pursuant  to  the  contract,  he  could  recover  not  only 
the  deposit  and  the  expenses  of  investigating  the  title,  but 
damages  for  the  loss  of  his  bargain  ;  and  that  the  measure  of 
such  damages  was  the  profit  which  it  was  shown  he  would 
have  made  upon  a  re-sale.     It  was  after  this  decision  in  Engel 
v.  Pitch  that  the  plaintiffs  in    error  declined  to  argue  the 
present  case  in  the  Exchequer  Chamber,  as  the  authorities  on 
the  subject  could  only  be  freely  reviewed  by  a  higher  tribunal. 
The  case  therefore  comes  to  your  Lordships'  House  without 
the  advantage  of  the  opinions  of  the  learned  judges  of  that 
court. 

Notwithstanding  the  repeated  recognition  of  the  authority 
of  Hopkins  v.  Grazebrook,  I  cannot,  after  careful  consider- 
ation, acquiesce  in  the  propriety  of  that  decision.  I  speak,  of 
course,  of  the  exception  which  it  introduced  to  the  rule  estab- 
lished by  Flureau  y.  Thornhill,  with  respect  to  damages  upon 
the  breach  of  a  contract  for  the  sale  of  a  real  estate,  for  as 


546  CASES  ON  DAMAGES. 

to  the  case  itself  not  falling  within  the  exception  to  the  rule 
(if  any  such  exists),  I  suppose  no  doubt  can  now  be  enter- 
tained. The  exception  which  the  court,  in  Hopkins  v.  Graze- 
brook,  engrafted  upon  the  rule  in  Flureau  v.  Thornhill,  has 
always  been  taken  to  be  this  :  that  in  an  action  for  breach  of 
a  contract  for  the  sale  of  a  real  estate  if  the  vendor  at  the 
time  of  entering  into  the  contract  knew  that  he  had  no  title, 
the  purchaser  has  a  right  to  i*ecover  damages  for  the  loss  of 
his  bargain. 

In  Sedgwick  on  Damages,  4th  ed.  p.  234,  mentioned  by  Mr. 
Baron  Martin,  in  his  judgment  in  this  case,  after  a  reference  to 
the  general  rule  as  to  damages,  it  is  said,  "  To  this  general  rule 
there  undoubtedly  exists  an  important  exception  which  has 
been  introduced  from  the  civil  law  in  regard  to  damages  recov- 
erable against  a  vendor  of  real  estate  who  fails  to  perform  and 
complete  the  title.  In  these  cases  the  line  has  been  repeat- 
edly drawn  between  parties  acting  in  good  faith  and  failing 
to  perform  because  they  could  not  make  a  title,  and  parties 
whose  conduct  is  tainted  with  fraud  and  bad  faith.  In  the 
former  case,  the  plaintiff  can  only  recover  whatever  money 
has  been  paid  by  him  with  interest  and  expenses.  In  the 
latter,  he  is  entitled  to  damages  for  the  loss  of  his  bargain. 
The  exception  cannot,  I  think,  be  justified  or  explained  on 
principle,  but  it  is  well  settled  in  practice."  I  quite  agree 
that  the  distinction  as  to  damages  in  cases  of  contracts  for 
the  sale  of  real  estate,  where  the  vendor  acts  bond  Jide,  and 
where  his  conduct  is  tainted  with  fraud  or  bad  faith,  is  not  to 
be  "justified  or  explained  on  principle." 

I  fully  agree  in  the  doubt  expressed  by  Mr.  Justice  Black- 
burn, in  Sikes  v.  Wild,  1  B.  &  S.  594,  as  to  the  soundness  of  the 
exception  in  Hopkins  v.  Grazebrook,  and  in  the  observations 
which  follow  the  expression  of  that  doubt.  The  learned  judge 
said,  "  I  do  not  see  how  the  existence  of  misconduct  can  alter 
the  rule  by  which  damages  for  the  breach  of  a  contract  are  to 
be  assessed  ;  it  may  render  the  contract  voidable  on  the  ground 
of  fraud,  or  give  a  cause  of  action  for  deceit,  but  surely  it 
cannot  alter  the  effect  of  the  contract  itself.     And  if  it  be 


BAIN  v.  FOTHERGILL.  547 

said  that  the  rule  depends  upon  an  implied  condition  result- 
ing from  the  general  understanding  of  vendors  and  pur. 
chasers  (which  is  the  ground  taken  by  Mr.  Justice  Parke  in 
Walker  v.  Moore,  and  I  think  the  true  one),  and  that  the 
usage  is  such  that  this  implied  condition  excludes  such  cases 
as  Hopkins  v.  Grazebrook,  I  think  that  it  will  be  worth}' 
of  the  consideration  of  any  court  competent  to  review  that 
case  whether  the  strong  opinion  of  Lord  St.  Leonards,  re- 
peated in  the  13th  edition  of  Vendors  and  Purchasers,  does 
not  show  that  the  '  general  understanding  of  conveyancers 
has  been  misapprehended.'"  In  the  14th  edition  of  his  work, 
pp.  360,  361,  Lord  St.  Leonards  quotes  the  whole  of  the  above 
passage  from  Mr.  Justiee  Blackburn's  judgment,  and  adds, 
"  this  seems  to  be  the  true  rule ;  it  is  a  point  which,  whilst  at 
the  bar,  I  should  have  treated  as  beyond  doubt." 

Upon  a  review  of  all  the  decisions  on  the  subject,  I  think 
that  the  case  of  Hopkins  v.  Grazebrook  ought  not  any 
longer  to  be  regarded  as  an  authority.  Entertaining  this 
opinion,  I  can  have  no  doubt  that  the  judgment  of  the  Court  of 
Exehequer  in  the  present  case  is  right,  whether  it  falls  within 
the  rule  as  established  by  Flureau  v.  Thornhill,  or  is  to  be 
considered  as  involving  circumstances  which  have  been  re- 
garded as  removing  cases  from  the  influence  of  that  rule ; 
because  I  think  the  rule  as  to  the  limits  within  which  damages 
may  be  recovered  upon  the  breach  of  a  contract  for  the  sale 
of  a  real  estate  must  be  taken  to  be  without  exception.  If  a 
person  enters  into  a  contract  for  the  sale  of  a  real  estate 
knowing  that  he  has  no  title  to  it,  nor  any  means  of  acquiring 
it,  the  purchaser  cannot  recover  damages  beyond  the  expenses 
he  has  incurred  by  an  action  for  the  breach  of  the  contract ; 
he  can  only  obtain  other  damages  by  an  action  for  deceit. 

It  is  only  necessaiy  to  add  that,  in  m}-  opinion,  if  there 
were  any  exceptional  cases  from  the  rule  in  Flureau  v.  Thorn- 
hill,  the  present  case  would  not  fall  within  any  of  them,  but 
is  within  the  rule  itself.  The  respondents,  when  they  entered 
into  the  contract  for  the  sale  of  Miss  Walter's  Royalty,  had 
an  equitable  title  to  the  mine  which  the}-  might  have  perfected 


548  CASES   ON   DAMAGES. 

by  obtaining  the  lessors"  consent  to  the  assignment  to  them. 
This  consent  had  not  been  obtained  at  the  time  the  contract 
was  entered  into,  and  the  fact  was  not  communicated  to  the 
intended  purchaser.  The  reason  for  this  non-communication 
is  stated  in  the  case  to  be,  that  "  either  it  did  not  cross  the 
mind  of  the  respondent  Fothergill,  or,  if  it  did  occur  to  him  he 
forbore  to  mention  it,  feeling  sure  that  no  difficulty  would 
arise  with  respect  to  such  consent,  and  that  it  was  therefore  a 
matter  of  no  importance."  There  is  no  reason  to  think  that 
the  respondents  were  not  acting  throughout  under  a  bona  fide 
belief  that  the  lessors'  consent  might  be  obtained  at  any  time 
upon  application.  They  were  prevented  performing  their 
contract,  not  from  any  fraud  or  wilful  act  on  their  part,  but 
by  an  unexpected  defect  in  their  title  which  it  was  beyond 
their  power  to  cure. 

The  case  falls  precisely  within  the  terms  of  the  rule  as 
stated  in  Flureau  v.  Thornhill ;  and  therefore,  in  ury  opinion, 
the  judgment  appealed  from  is  right  and  ought  to  be  affirmed. 


HOPKINS   v.   LEE. 

United  States  Supreme  Court,  1821.     6  Wheat.  109. 

Error  to  the  Circuit  Court  for  the  District  of  Columbia. 

This  was  an  action  of  covenant,  brought  by  the  defendant 
in  error  (Lee),  against  the  plaintiff  in  error  (Hopkins),  to 
recover  damages  for  not  conveying  certain  tracts  of  military 
lands,  which  the  plaintiff  in  error  had  agreed  to  convey, 
upon  the  defendant  in  error  relieving  a  certain  incumbrance 
held  by  one  Rawleigh  Colston,  upon  an  estate  called  Hill  and 
Dale,  and  which  Lee  had  previously  granted  and  sold  to  Hop- 
kins, and  for  which  the  military  lands  in  question  were  to  be 
received  in  part  pa}'ment.  The  declaration  set  forth  the 
covenant,  and  averred  that  Lee  had  completely  removed 
the  incumbrance,  from  Hill  and  Dale.1    The  counsel  for  the 

1  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


HOPKINS   v.  LEE.  549 

plaintiff  in  error  prayed  the  court  to  instruct  the  jury,  that 
in  the  assessment  of  damages,  they  should  take  the  price 
of  the  military  hauls  as  agreed  upon  by  the  parties  in  the 
articles  of  agreement  upon  which  the  action  was  brought,  as 
the  measure  of  damages  for  the  breach  of  covenant.  But  the 
court  refused  to  give  this  instruction,  and  directed  the  jury 
to  take  the  price  of  the  lands,  at  the  time  they  ought  to  have 
been  conveyed,  as  the  measure  of  damages.  To  this  instruc- 
tion the  plaintiff  in  error  excepted  ;  and  a  verdict  and  judg- 
ment thereon  being  rendered  for  the  plaintiff  below,  the  cause 
was  brought  by  writ  of  error  to  this  court. 

Livingston,  J.  In  the  assessment  of  damages,  the  counsel 
for  the  plaintiff  in  error  prayed  the  court  to  instruct  the  jury, 
that  they  should  take  the  price  of  the  land,  as  agreed  upon 
by  the  parties  in  the  articles  of  agreement  upon  which  the 
suit  was  brought,  for  their  government.  But  the  court  re- 
fused to  give  this  instruction,  and  directed  the  jury  to  take 
the  price  of  the  lands,  at  the.  time  they  ought  to  have  been 
conveyed,  as  the  measure  of  damages.  To  this  instruction 
the  plaintiff  in  error  excepted.  The  rule  is  settled  in  this 
court,  that  in  an  action  by  the  vendee  for  a  breach  of  con- 
tract on  the  part  of  the  vendor,  for  not  delivering  the  article, 
the  measure  of  damages  is  its  price  at  the  time  of  the  breach. 
The  price  being  settled  by  the  contract,  which  is  generally 
the  case,  makes  no  difference,  nor  ought  it  to  make  any ; 
otherwise  the  vendor,  if  the  article  have  risen  in  value,  would 
always  have  it  in  his  power  to  discharge  himself  from  his 
contract,  and  put  the  enhanced  value  in  his  own  pocket. 
Nor  can  it  make  any  difference  in  principle,  whether  the  con- 
tract be  for  the  sale  of  real  or  personal  property,  if  the  lands, 
as  is  the  case  here,  have  not  been  improved  or  built  on.  In 
both  cases,  the  vendee  is  entitled  to  have  the  thing  agreed 
for,  at  the  contract  price,  and  to  sell  it  himself  at  its  in- 
creased value.  If  it  be  withheld,  the  vendor  ought  to  make 
good  to  him  the  difference.  This  is  not  an  action  for  eviction, 
nor  is  the  court  now  prescribing  the  proper  rule  of  damages 
in  such  a  case.  Judgment  affirmed. 


550  CASES  ON  DAMAGES. 

MARGRAFv.   MUIR. 

New  York  Commission  of  Appeals,  1874.     57  N.  Y.  155. 

This  action  was  against  the  vendor  for  specific  perform- 
ance of  a  contract  to  convey  a  lot  of  land,  situate  in  West- 
chester County,  and  for  damages  for  breach  of  the  contract 
in  case  it  could  not  be  specifically  performed.1 

Eakl,  C.     In  this  case  the  referee  denied  the  equitable 
relief,  but  awarded  damages  for  the  breach  of  the  contract, 
and  in  this  he  did  not  err,  provided  he  adopted  the  proper 
rule  of  damage.     The  referee  allowed  the  plaintiff  as  dam- 
ages the  difference  between  the  contract  price  and  the  value 
of  the  laud,  thus  placing  him  in  the  position  he  would  have 
been  if  the  contract  had  been  performed.     In  this  I  think  he 
erred.     The  general  rule,  in  this  State,  in  the  case  of  execu- 
tory contracts  for  the  sale  of  land,  is  that,  in  the  case  of 
breach  by  the  vendor,  the  vendee  can  recover  only  nominal 
damages,  unless  he  has  paid  part  of  the  purchase-money,  in 
■which  case  he  can   also  recover  such  purchase-money  and 
interest.      Mack  v.  Patchin,  42  N.  Y.  167  ;  Bush  v.  Cole, 
28  Id.  261 ;  Pumpelly  v.  Phelps,  40  Id.  60.     See,  also,  Lock 
v.  Furze,   Law   Rep.  1    C.  P.  441  ;    Engle   v.  Fitch,    Law 
Rep.  3  Q.  B.,  314.)     But  to  this  rule  there  are  some  ex- 
ceptions based  upon  the  wrongful  conduct  of  the  vendor,  as 
if  he  is  guilty  of  fraud  or  can  convey,  but  will  not  either 
from  perverseness  or  to  secure  a  better  bargain,  or,  if  he  has 
covenanted  to  convey  when  he  knew  he  had  no  authority  to 
contract  to  convey  ;  or,  where  it  is  in  his  power  to  remedy  a 
defect  in  his  title  and  he  refuses  or  neglects  to  do  so,  or 
when  he  refuses  to  incur  such  reasonable  expenses  as  would 
enable  him  to  fulfil  his  contract.     In  all  such  cases,  the  ven- 
dor is  liable  to  the  vendee  for  the  loss  of  the  bargain,  under 
rules  analogous  to  those  applied  in  the  sale  of  personal  prop- 
erty.    Here  no  fraud  was  perpetrated  on  the  vendee.     He 
1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


MARGRAF  v.  MUIR.  551 

knew  that  the  vendor  did  not  have  title  to  the  land,  and  that 
she  could  not  convey  to  him  without  authority  from  some 
court ;  and  he,  knowing  that  the  land  was  worth  $2000,  rnay 
be  presumed  to  have  known  that  no  authority  could  be  ob- 
tained to  convey  the  land  for  $800,  without,  in  some  way, 
practising  an  imposition  upon  the  court.  This  latter  knowl- 
edge she  did  not  have.  Believing,  as  she  did,  that  $800  was 
a  fair  price  for  the  land,  she  had  no  reason  to  doubt  that  she 
could  obtain  authority  to  convey.  Further  than  this,  he 
knew  that  the  land  had  been  sold  for  taxes  and  a  lease  given. 
This  she  did  not  know.  Under  these  circumstances,  she 
could  not  get  authority  from  the  court  to  make  a  conveyance 
upon  behalf  of  her  minor  children,  and  it  appears  that  she 
could  not  procure  the  tax  title.  Hence  there  is  no  ground 
for  imputing  to  her  any  blame  for  not  making  such  a  con- 
veyance as  her  contract  called  for.  These  facts  do  not  call 
for  the  application  of  an  exceptional  rule  of  damages  in  this 
case. 

The  case  of  Pumpelly  v.  Phelps,  supra,  is  the  widest  de- 
parture from  the  general  rule  of  damages  in  such  case  that  is 
to  be  found  in  the  books.  In  that  case  it  was  held,  that 
where  the  vendor,  in  an  executory  contract  for  the  convey- 
ance of  land,  knew  at  the  time  he  made  the  contract  that  be 
had  no  title,  although  he  acted  in  good  faith  believing  that 
he  could  procure  and  give  the  purchaser  a  good  title,  he  was 
yet  liable  for  the  difference  between  the  contract  price  and 
the  value  of  the  land.  But  there  are  two  features  which  dis- 
tinguish this  case  from  that.  In  that  case  the  vendee  did 
not  know  that  the  vendor  had  no  title.  Here  he  did  know 
it,  and  he  knew,  also,  that  she  could  get  no  title  without 
imposing  upon  some  court.  Here  also,  even  if  she  could 
have  procured  the  authority  of  some  court  to  convey,  she 
still  would  have  been  unable  to  give  such  a  title  as  her  con- 
tract called  for,  on  account  of  the  outstanding  tax  title  which 
was  unknown  to  her  when  she  contracted  and  which  she 
could  not  procure. 

The  plaintiff  agreed,  subsequently,  to  the  making  of  the 


552  CASES  ON  DAMAGES. 

contract,  if  defendant  would  abate  $100  from  the  contract 
price,  that  he  would,  at  his  expense,  conduct  the  proceedings 
to  procure  from  the  court  authority  to  convey,  she  co-operat- 
ing with  him,  and  would  take  a  conveyance  subject  to  the  tax 
title.  This  did  not  alter  the  position  of  the  parties  so  as  to 
affect  this  case.  She  was  in  no  sense  culpable  in  not  co- 
operating with  him  in  imposing  upon  some  court,  and,  to 
shield  her  from  the  damages  claimed  in  this  case,  she  was 
not  obliged  to  allow  him  anything  on  account  of  the  tax 
title.  I  am,  therefore,  of  opinion  that  the  referee  erred  in 
the  rule  of  damages  applied.  The  recovery  should  have  been 
confined  to  the  purchase-money  paid  (twenty-five  dollars)  and 
the  interest  thereon. 


CARY  v.   GRUMAN. 

New  York,  1843.     4  Hill,  625. 

On  error  from  the  Oneida  C.  P.  Gruman  sued  Cary  in  a 
justice's  court  for  the  breach  of  a  warrant}'  of  soundness  on 
the  sale  of  a  horse ;  and  after  a  trial  before  the  justice,  he 
rendered  judgment  in  favor  of  Gruman,  from  which  Cary  ap- 
pealed to  the  Common  Pleas.  The  price  paid  for  the  horse 
was  $90,  and  the  breach  complained  of  was  a  disease  in  the 
horse's  eyes.  On  the  trial  in  the  Common  Pleas,  after  Gru- 
man, the  plaintiff,  had  given  evidence  tending  to  prove  the 
warrant}'  and  the  disease,  the  defendant,  in  the  course  of 
cross-examining  one  of  the  plaintiff's  witnesses,  inquired  what 
ihe  horse  would  have  been  worth  at  the  time  of  the  sale,  if 
he  had  been  sound  ;  declaring  that  one  object  of  the  question 
was,  to  show  the  amount  of  the  plaintiffs  damages,  if  entitled 
to  any,  under  the  following  rule,  which  he  contended  to  be 
the  true  one,  viz.,  "  that  the  proper  measure  of  damages  was 
the  difference  between  the  real  value  of  the  horse  if  sound, 
and  his  real  value  with  the  defect  complained  of."  The 
court,  though  they  received  the  answer  for  another  purpose, 


CARY  v.  GRUMAN.  553 

overruled  it  for  the  purpose  proposed  as  above,  holding  the 
true  measure  of  damages  to  be,  the  difference  between  the 
price  paid,  and  the  value  with  the  defects.  The  trial  pro- 
ceeded accordingly ;  and  the  jury  were  charged  to  govern 
themselves  by  this  rule. 

The  defendant  below  took  exceptions  to  the  decision  and 
charge  ;  and,  the  verdict  and  judgment  being  for  the  plaintiff 
below,  the  defendant  brought  error  to  this  court  on  the  above 
and  other  grounds. 

Cowen,  J.1  It  is  unnecessaiy  to  inquire  whether  various 
exceptions  taken  in  the  case,  mainly  of  a  formal  character, 
are  well  founded  ;  for  we  think  the  court  below  erred  in 
laying  down  the  rule  of  damages.  A  warranty  on  the  sale 
of  a  chattel  is,  in  legal  effect,  a  promise  that  the  subject 
of  sale  corresponds  with  the  warranty,  in  title,  soundness, 
or  other  quality  to  which  it  relates  ;  and  is  always  so  stated 
in  the  declaration  when  this  is  technically  framed.  It  natu- 
rally follows  that  if  the  subject  prove  defective  within 
the  meaning  of  the  warrant}-,  the  stipulation  can  be  satisfied 
in  no  other  way  than  by  making  it  good.  That  cannot  be 
done  except  b}r  paying  to  the  vendee  such  sum  as,  together 
with  the  cash  value  of  the  defective  article,  shall  amount  to 
what  it  would  have  been  woitu  if  the  defect  had  not  existed. 
There  is  no  right  in  the  vendee  to  return  the  article  and 
recover  the  price  paid,  unless  there  be  fraud,  or  an  express 
agreement  for  a  return.  Voorhees  v.  Earl,  2  Hill,  288. 
Nor  does  it  add  to  or  detract  any  from  the  force  or 
compass  of  the  stipulation  that  the  vendee  may  have  paid  a 
greater  or  less  price.  The  very  highest  or  the  very  lowest 
and  most  trifling  consideration  is  sufficient.  A  promise  in 
consideration  of  one  dollar,  that  a  horse  which,  if  sound, 
would  be  worth  $100,  is  so,  will  oblige  the  promisor  to  pay 
$100  if  the  horse  shall  prove  totally  worthless  by  reason  of 
unsoundness,  and  $50  if  his  real  value  be  less  by  half,  and 
so  in  proportion.  Nor  could  the  claim  be  enhanced  by 
reason  that  the  vendee  had  paid  $1000. 

1  Part  of  the  opinion  is  omitted. 


554  CASES  ON  DAMAGES. 

The  rule  undoubtedly  is,  that  the  agreed  price  is  strong 
evidence  of  the  actual  value  ;  and  this  should  never  be  de- 
parted from,  unless  it  be  clear  that  such  value  was  more  or 
less  than  the  sum  at  which  the  parties  fixed  it.  It  is  some- 
times the  value  of  the  article  as  between  them,  rather  than 
its  general  worth,  that  is  primarily  to  be  looked  to,  —  a  value 
which  very  likely  depended  on  considerations  which  they 
alone  could  appreciate.  Things  are,  however,  very  often 
purchased  on  account  of  their  cheapness.  In  the  common 
language  of  vendors,  they  are  offered  at  a  great  bargain,  and 
when  taken  at  that  offer  on  a  warranty,  it  would  be  contrary  to 
the  express  intention  of  the  parties,  and  perhaps  defeat  the 
warranty  altogether,  should  the  price  be  made  the  inflexible 
standard  of  value.  A  man  sells  a  bin  of  wheat  at  fifty  cents 
per  bushel,  warranted  to  be  of  good  quality.  It  is  worth 
one  dollar  if  the  warranty  be  true  ;  but  it  turns  out  to  be  so 
foul  that  it  is  worth  no  more  than  seventy-five  cents  per 
bushel.  The  purchaser  is  as  much  entitled  to  his  twenty-five 
cents  per  bushel  in  damages  as  he  would  have  been  by  pay- 
ing his  dollar,  and  if  he  had  given  two  dollars  per  bushel  he 
could  recover  no  more.  So,  a  horse  six  3'ears  old  is  sold  for 
fifty  dollars  with  warranty  of  soundness.  If  sound,  he  would 
be  worth  $100.  He  wants  eyesight,  and  thus  his  real  value 
is  reduced  one-half.  The  vendee  is  entitled  to  fifty  dollars 
as  damages  ;  and  could  recover  no  more  had  he  paid  $200. 

The  tests  of  real  value  or  the  falling  off  in  that  value  be- 
cause the  warranty  proves  to  be  false  is  one  thing.  The 
price  agreed  for  the  horse,  said  Lord  Denman,  C.J.,  in 
Clare  v.  Maynard,  7  Carr.  &  Payne,  741,  is,  I  think,  "not 
conclusive  as  to  its  value,  though  I  think  it  very  strong  evi- 
dence." Again,  "  my  view  of  it  is  that  the  fair  value  of  the 
horse,  if  sound,  is  the  measure  of  damages,  and  that  the  sum 
the  plaintiff  gave  is  only  the  evidence  of  value."   .  .   . 

The  rule  has  certainly  been  laid  down  without  express 
qualification,  that  the  measure  of  damages  is  the  difference 
between  the  real  value  of  the  horse  and  the  price  given. 
Caswell  r.  Coare,  1  Taunt.  566.     This  was  right  in  the  par- 


CARY  v.  GRUMAN.  555 

ticular  case.  No  evidence  of  actual  value,  independently  of 
the  price  paid,  was  given  or  offered.  Voorhees  v.  Earl,  before 
cited,  was  a  warranty  that  60  barrels  of  flour  were  superfine. 
They  proved  to  be  of  inferior  quality  ;  and,  after  looking  at 
the  cases,  we  thought  the}-  gave  the  measure  of  damages  as 
it  should  stand  on  principle,  viz.,  the  difference  between  the 
value  of  the  60  barrels,  at  the  time  of  the  sale,  considered  as 
superfine  flour,  and  the  value  of  the  inferior  article  sold. 
See  2  Hill,  291.  In  2  Phil.  Ev.  105,  Am.  ed.  of  1839,  the 
rule  is  laid  down  thus:  "If  he  (the  purchaser)  keep  the 
horse,  he  may  recover  the  difference  between  the  value  of 
such  horse  perfectly  sound,  and  the  value  of  the  identical 
horse  at  the  time  of  the  warranty."  The  author  adds  several 
cases  of  enhancement  arising  from  special  damage,  and 
illustrating  a  class  of  exceptions  which  we  admitted  to  exist 
in  Voorhees  v.  Earl.  Restricting  the  rule  in  Caswell  v.  Coare 
to  the  case  as  it  stood  on  the  evidence  —  and  so  it  should 
clearly  be  restricted  —  there  is  no  discrepancy  in  the  English 
cases. 

It  is  impossible  to  say,  nor  have  we  the  right  to  inquire, 
whether  the  real  value  of  the  horse  in  question,  supposing 
him  to  have  been  sound,  would  have  turned  out  to  be  more  or 
less  than  the  $90  paid.  Suppose  the  jury  thought,  with  one 
witness  whom  the  court  allowed  to  state  such  value  for  an- 
other purpose,  that  it  was  not  more  than  $80 ;  the  plaintiff 
then  recovered  ten  dollars,  not  on  account  of  the  defect,  but 
because  he  had  been  deficient  in  care  or  sound  judgment  as  a 
purchaser.  On  the  other  hand,  had  the  horse  been  actually 
worth  $100,  the  defendant  would  have  been  relieved  from  the 
payment  of  the  ten  dollars  because  he  had  made  a  mistake  of 
value  against  himself.  The  cause  might  thus  have  turned  on 
a  question  entirely  collateral  to  the  truth  of  the  warranty. 

In  confining  the  defendant  to  the  rule  of  Caswell  v.  Coare, 
as  an  unqualified  one,  we  think  the  court  below  erred  ;  and 
that  for  this  reason  the  judgment  must  be  reversed.  We 
direct  that  a  venire  de  novo  issue  from  that  court ;  and  that 
the  costs  shall  abide  the  event.  Hide  accordingly. 


556  CASES  ON   DAMAGES. 

HOFFMAN  v.   CHAMBERLAIN. 

New  Jersey  Court  of  Errors  and  Appeals,  1885.     40  N.J.  Eq.  663. 

Bill  to  foreclose  a  mortgage  given  to  secure  the  purchase 
mone}'  of  certain  furniture.  Defence,  a  failure  of  title  to  part 
of  the  property,  viz.,  three  Baltimore  heaters.1 

Reed,  J.2  In  respect  to  these  heaters,  neither  of  the  ven- 
dors to  Mrs.  Chamberlain  had  title,  and  there  should  be  a 
deduction  from  the  amount  due  upon  the  six  outstanding 
notes  for  this  failure  of  title. 

The  question  then  arises,  What  is  the  proper  measure  of 
the  deduction  to  be  allowed?  Perhaps  no  feature  relating 
to  the  sale  of  chattels  has  been  so  little  and  so  unsatisfac- 
torily discussed  and  determined  in  previous  adjudications  as 
this.  It  seems  to  be  the  settled  doctrine  in  the  English 
courts  that  where  there  is  a  failure  of  title  to  all  the  chattels 
sold,  the  purchaser  can  treat  the  transaction  as  presenting  an 
instance  of  an  entire  failure  of  consideration,  and  may  sue  for 
the  mone}7  paid.     Eichholz  v.  Bannister,  17  C.  B.  (n.  s.)  708. 

There  is,  however,  no  case  decided  in  their  courts  that 
holds  that  the  right  of  a  purchaser  is  limited  to  a  recovery 
of  this  sum  in  an  action  brought,  not  for  the  money  paid,  but 
for  a  breach  of  the  warrant}'  of  title.  The  rule  is  entirely 
settled  that  for  a  breach  of  a  covenant  for  title  to  real  prop- 
erty the  measure  of  damages  is  the  consideration  paid  and 
the  interest  upon  such  sum.  This  rule,  early  settled  in  the 
English  courts,  is  the  rule  in  this  and  man}-  other  States. 

This  rule  has  also  been  adopted  in  many  States  in  this 
country  as  equally  applicable  to  breaches  of  the  warranty  of 
title  to  personal  property.  The  following  cases  display  the  ex- 
tent to  which  this  rule  has  here  been  adopted  :  Noel  v.  Wheatby, 
30  Miss.  181  ;  Ware  v.  Weathnall,  2  McCord,  413  ;  Wood 

1  This  short  statement  is  substituted  for  that  of  the  court. 

2  Part  of  the  opinion  is  omitted. 


HOFFMAN  v.   CHAMBERLAIN.  557 

y.  Wood,  1  Mete.  (Ky.)  512;  Crittenden  v.  Posey,  1  Head, 
311 j  Ellis  v.  Gosney,  7  J.  J.  Marsh.  Ill  ;  Arthur  v.  Moss,  1 
Oreg.  193;  Goss  v.  Dysant,  31  Tex.  186. 

A  perusal  of  the  opinions  in  these  cases  and  the  reasons 
given  for  the  adoption  of  this  rule  in  the  sale  of  chattels,  is 
not  calculated  to  vindicate  the  wisdom  of  the  rule. 

The  doctrine,  so  far  as  it  is  applicable  to  breaches  of  the 
covenants  in  real  conveyances,  rests  upon  grounds  which 
appertain  to  the  character  of  real  estate.  The  reason  for  the 
adoption  of  this  rule  in  this  class  of  actions  is  set  forth  at 
length  by  Kent  in  the  leading  case  of  Staats  v.  Ten  Eyck,  3 
Cai.  Cas.  111. 

The  rule  is  an  exception  to  the  general  principle  which 
underlies  the  measure  of  damages  for  breaches  of  contract, 
namely,  the  standard  of  compensation.  This  latter  rule 
applies  to  actions  for  breaches  of  warranties  of  quality  in  the 
sale  of  chattels  to  its  full  extent.  In  what  respect  the  loss 
resulting  from  a  breach  of  the  warranty  of  title  differs  from 
that  resulting  from  a  breach  of  the  warranty  of  quality  in 
dealing  with  personal  property,  is  difficult  to  conceive. 
Outside  of  the  vice  of  extending  an  exception  to  a  general 
rule  in  any  event,  there  appears  to  be  no  reason  wh}T  the  rule 
of  recover}'  should  not  be  uniform  in  actions  upon  both  kinds 
of  warranties.  Nor  do  the  cases  in  which  the  exceptional 
rule  applicable  to  damages  for  breaches  of  real  covenants  has 
been  extended  to  warranties  of  title  to  chattels,  in  my  judg- 
ment, present  any  reason  for  such  prejudicial  action.  In 
nearly  all  of  these  cases  the  question  arose  in  States  when  and 
where  slavery  prevailed,  and  was  in  respect  to  breaches  of 
a  warranty  of  title  to  slaves.  The  reason  stated  in  many  of 
the  cases  for  the  adoption  of  the  rule  was  the  precarious  and 
fluctuating  character  of  that  kind  of  property.  In  other  cases 
the  court  is  content  with  the  citation  of  the  early  case  of 
Armstrong  v.  Percy,  5  Wend.  535,  as  the  authority  for  the 
rule. 

In  regard  to  the  latter  case,  it  may  be  remarked  that  the 
rule  is  drawn  from  a  remark  of  the  judge  who  delivered  the 


558  CASES  ON  DAMAGES. 

opinion  in  that  case,  in  a  single  sentence,  unsupported  by 
authority  or  reason.  And  this  remark  was  made  in  the  face 
of  the  result  in  the  previous  case  of  Blasdale  v.  Babcock,  1 
Johns.  517,  in  which  there  was  a  recovery  of  the  value  of 
a  horse  and  costs  upon  a  warranty  of  title.  The  matter 
actually  decided  in  the  case  of  Armstrong  v.  Percy  was, 
that,  where  an  action  had  been  brought  against  the  purchaser 
by  the  real  owner,  who  was  not  the  vendor,  the  purchaser 
could  recover  from  the  vendor  the  money  paid,  besides  the 
costs  of  the  suit  which  he  was  obliged  to  defend. 

There  was  no  suggestion  that  the  rule  controlling  in  this 
respect  an  action  for  breach  of  this  kind  of  warranty 
differed  from  the  rule  in  actions  upon  other  kinds  of  warran- 
ties. The  cases  cited,  namely,  Curtis  v.  Hannay,  3  Esp.  82 ; 
Caswell  v.  Coare,  1  Taunt.  566  ;  Lewis  v.  Peake,  7  Taunt. 
153,  were  all  actions  for  breach  of  warranty  of  quality,  and 
the  measure  of  damages  in  these  cases  was  shown  to  have 
been  dependent  upon  the  pleadings.  In  the  first  two  of  these 
cases  no  special  damages  were  set  out  in  the  declaration, 
and  there  was  nothing  but  the  amount  of  the  consideration  to 
show  what  was  lost,  so  that  was  ruled  to  be  the  measure  of 
damages.  In  the  last  case  the  claim  for  damages  having  been 
broader,  it  was  permitted  to  the  plaintiff  to  recover,  in  addi- 
tion to  this,  the  costs  of  a  suit  against  him  by  his  vendee,  to 
whom  he  had  sold  with  a  similar  warranty. 

There  is  nothing  in  the  matters  decided  in  the  case  of 
Armstrong  v.  Percy  which  fixes,  as  a  rule,  that  for  the 
present  kind  of  warranties  the  measure  of  damages  is  limited 
to  the  consideration  paid,  and  interest.  The  rule,  I  think, 
in  all  actions  of  this  kind,  is  compensation.  Where  no 
special  damages  are  set  forth,  the  measure  of  the  loss  is  the 
value  of  the  property  purchased;  and  where  there  is  no 
evidence  of  value  but  the  consideration  paid,  that  will  be 
taken  as  the  standard  of  value.  Where  there  is  a  failure  of 
title  to  a  part,  or  an  inferior  title  only  is  sold,  the  loss  is  the 
difference  between  the  property  as  conveyed  and  its  value, 
had  the  title  been  as  warranted. 


HUTCHINSON  v.   SNIDEK.  559 

In  support  of  the  view  that  this  general  rule,  applicable  to 
damages,  appertains  to  actions  upon  breaches  of  warranties 
of  title  to  chattels  are  the  cases  of  Grose  v.  Hennessey,  13 
Allen,  389  ;  Rowland  v.  Shelton,  25  Ala.  217,  and  the  text  of 
Mr.  Sedgwick,  Meas.  of  Dam.,  294.  My  opinion  is  that  there 
should  be  a  deduction,  in  this  case,  of  the  difference  between 
the  value  of  the  entire  lot  of  chattels  sold  and  the  value  of 
the  lot  without  the  heaters.  The  only  evidence  of  the  value 
of  the  entire  lot  is  what  it  was  sold  for,  namely,  $1800. 
The  evidence  in  regard  to  the  value  of  the  heaters  fixes  their 
value  at  about  $200. 

Adopting  these  values,  there  should  be  a  deduction  for  the 
latter  sum  from  the  notes,  as  of  the  date  of  the  sale,  leaving 
due  $400  and  interest. 

The  decree  should  be  reversed. 

Decree  unanimously  reversed. 


HUTCHINSON  v.  SNIDER. 

Pennsylvania,  1890.     137  Pa.  1. 

Sterrett,  J.  This  action  of  covenant,  brought  by  Isaac 
Hutchinson  against  the  executors  of  John  Snider,  deceased, 
is  grounded  on  the  tripartite  agreement,  executed  in  Decem- 
ber, 1864,  between  said  Hutchinson  and  Snider  and  Basil 
Brownfield,  wherein  each  of  said  parties  agreed  with  the 
other  two  to  put  down  a  well  on  his  own  land  for  the  purpose 
of  procuring  therefrom  oil  or  petroleum,  and,  if  successful, 
bound  himself  to  deliver  to  each  of  them  one-twentieth  of 
the  oil  or  petroleum  taken  from  said  well,  etc.  For  the  pur- 
pose of  prosecuting  the  work,  the  agreement  further  provides, 
inter  alia,  that  the  parties  shall  jointly  purchase  and  hold  a 
set  of  boring  tools  and  ropes;  that  each  shall  "be  at  the 
expense  of  putting  down  the  well  on  their  own  premises,  as 
follows :  The  said  Hutchinson  to  be  at  all  the  expense  of 
sinking  his  well ;  the  said  Brownfield  to  be  at  all  the  expense 


560  CASES  ON  DAMAGES. 

of  sinking  his  well ;  the  said  Snider  to  be  at  all  the  expense 
of  sinking  his  well ;  each  party  to  keep  the  tools  in  order 
while  using  them  in  boring  said  wells.  .  .  .  All  of  said  wells 
are  to  be  sunk  within  two  years  ;  "  and  the  interest  of  one- 
twentieth  in  the  well  put  down  by  each  party,  above  provided 
for,  shall  continue  for  thirty  years  from  the  time  he  com- 
mences boring  said  well. 

Shortly  after  the  agreement  was  executed,  Hutchinson  put 
down  a  well  to  the  depth  of  768  feet,  without  finding  oil  or 
any  indication  thereof.  Neither  Snider  nor  Brownfield  ever 
commenced  to  bore  on  their  respective  lands,  presumably  be- 
cause it  became  manifest  that  oil  could  not  be  found  in  the 
county ;  and,  in  fact,  after  the  lapse  of  nearly  a  quarter  of  a 
century,  none  has  been  found.  In  1866  Snider  paid  Hutch- 
inson his  full  share  of  the  cost  of  the  tools  and  ropes. 

Nearly  twenty  years  after  the  right  of  action  accrued,  this 
suit  was  brought  to  recover  damages  for  breach  of  Snider's 
covenant  to  put  down  the  well.  On  the  trial,  it  was  success- 
fully claimed  that  the  proper  measure  of  damages  was  one- 
third  of  Hutchinson's  actual  outlay  in  putting  down  his  well, 
with  interest,  etc.,  and  the  specifications  of  error  all  relate  to 
that  question.  The  first  is  to  the  admission  of  evidence  to 
prove  the  cost  of  putting  down  Hutchinson's  well ;  the  second 
and  third,  to  the  refusal  of  the  court  to  charge  that  plaintiff 
was  not  entitled  to  recover;  and  the  fourth,  to  that  part  of 
the  charge  wherein  the  jury  was  instructed  that,  in  case  they 
found  for  plaintiff,  the  proper  measure  of  damages  "would 
be  one-third  of  the  actual  cost  of  sinking  the  well,"  etc. 
There  appears  to  have  been  no  evidence  whatever  to  which 
any  other  measure  of  damages  could  apply. 

It  is  unnecessary  to  consider  the  assignments  of  error  sepa- 
rately. The  single  question  involved  in  all  of  them  is 
whether  the  learned  president  of  the  Common  Pleas  did  not 
err  in  his  rulings  as  to  the  proper  measure  of  damages.  We 
are  clearly  of  opinion  that  he  did.  In  view  of  the  express 
provision  of  the  contract  that  Hutchinson,  as  well  as  each  of 
the  others,  should  "be  at  all  the  expense  of  sinking  his 


BERNSTEIN  v.   MEECH.  561 

well,"  that  is,  the  well  on  his  own  land,  there  appears  to  be 
no  possible  connection  between  the  failure  of  Snider  to  put 
down  a  well  on  his  land,  and  the  outlay  of  plaintiff  in 
putting  down  his  well.  The  latter  cannot,  in  any  sense,  be 
regarded  as  the  result,  directly  or  indirectly,  of  Snider's 
breach  of  covenant.  They  are  wholly  independent  of  each 
other.  The  only  interest  that  plaintiff  had,  under  the 
contract,  in  the  well  that  Snider  agreed  to  put  down,  was 
one-twentieth  of  the  oil  that  might  be  obtained.  If  plain- 
tiff had  been  able  to  show  that  he  sustained  any  loss,  in 
that  regard,  in  consequence  of  Snider's  failing  to  do  what  he 
agreed  to  perform,  to  that  extent  he  would  have  been  enti- 
tled to  recover.  But  no  evidence  tending,  in  the  slightest 
degree,  to  prove  any  such  loss  was  introduced,  and  without 
it  plaintiff  was  not  entitled  to  recover.  Nothing  is  better 
settled  than  that  damages,  for  which  compensation  may  be 
justly  claimed  and  allowed,  are  such  only  as  naturally  and 
ordinarily  flow  from  the  breach  of  contract  complained  of. 
They  must  be  such  as  may  fairly  be  supposed  to  have  en- 
tered into  the  contemplation  of  the  parties  when  they  made 
their  contract,  or  such  as  might,  according  to  the  ordinary 
course  of  things,  be  expected  to  follow  its  violation :  Bill- 
meyer  v.  Wagner,  91  Pa.  92;  Griffin  v.  Colver,  16  N.  Y. 
489  ;  Sedgwick  on  Dam.  78,  79.  Further  elaboration  of  the 
subject  is  unnecessary.  The  specifications  of  error  are 
sustained.  Judgment  reversed. 


BERNSTEIN  v.  MEECH. 

New  York,  1891.     130  N.  Y.  354. 

Bradley,  J.1     By  contract  of  date  August  4,   1887,  be- 
tween the  parties,  the  defendants  agreed    to  furnish   to  the 
plaintiff  the  opera  house   known  as  the  Academy  of  Music, 
in  the  city  of  Buffalo,  December  twenty-second,  twenty-third, 
1  Part  of  the  opinion  is  omitted. 
36 


562  CASES   ON   DAMAGES. 

and  twenty-fourth,  for  four  performances  by  the  Jarbeau 
Comedy  Company,  and  for  that  purpose  the  plaintiff  agreed  to 
furnish  the  services  of  that  company  during  that  time,  and 
to  take  as  the  consideration  fifty  per  cent  of  the  gross  receipts 
of  all  sums  realized  from  the  performances.  When  this  con- 
tract was  executed,  each  of  the  parties  had  the  right  to  assume 
that  the  other  would  observe  its  stipulations.  The  perform- 
ances did  not  take  place,  and  the  reason  why  they  did  not, 
the  plaintiff  charges,  was  attributable  to  the  breach  of  the 
contract  by  the  defendants.  The  purpose  of  this  action  was 
to  recover  damages  as  the  consequence.  .  .  . 

There  was  no  error  in  the  refusal  of  the  court  to  direct  a 
verdict  for  the  defendants. 

The  remaining  questions  have  relation  to  the  damages 
which  were  the  subject  of  the  plaintiff's  recovery.  The  gen- 
eral rule  on  the  subject  would  permit  him,  in  case  of  breach 
by  the  defendants,  to  recover  the  value  of  his  contract.  And 
that  was  dependent  upon  the  receipts  to  be  realized  from  the 
contemplated  performances  by  the  plaintiffs  company.  The 
results  which  would  in  that  respect  have  been  produced  if 
the  company  had  been  permitted  to  perform  the  contract 
were  speculative,  and  by  no  probative  means  ascertainable. 
It  is  contended  on  the  part  of  the  defendants  that  recovery 
could  be  founded  on  no  other  basis,  and  therefore  the  plain- 
tiff could  recover  nominal  damages  only.  The  value  of  the 
contract  to  the  plaintiff  was  in  the  profits,  and  in  the  amount 
of  them  which  may  have  been  realized  over  his  expenses  at- 
tending its  performance.  Those  profits  not  being  susceptible 
of  proof,  were  not  the  subject  of  recover}'.  But  by  the  breach 
of  the  contract  by  the  defendants,  the  plaintiff  was  denied 
the  opportunity  which  the  observance  of  it  could  have  given 
him  to  realize  fifty  per  centum  of  such  receipts  as  would  have 
been  produced  by  it.  His  loss  also  consisted  of  the  expenses 
by  him  incurred  to  prepare  and  provide  for  such  performance. 
While  the  plaintiff  was  unable  to  prove  the  value  in  profits  of 
his  contract,  he  was  properly  permitted  to  recover  the  amount 
of  such  loss,  as  it  appeared  he  had  suffered  by  the  defend- 


BERNSTEIN   v.   MEECH.  563 

ants'  breach.  Griffin  v.  Colver,  16  N.  Y.  489.  The  evidence 
warranted  the  conclusion  that  the  plaintiff,  through  his  agent, 
made  preparations  for  the  performance  of  the  contract,  and 
that  the  plaintiff  with  his  troupe  appeared  at  Buffalo,  pre- 
pared and  in  readiness  to  do  so.  The  amount  of  his  expenses 
incurred  for  the  purpose  of  such  performance  was  proved, 
and  the}'  were  the  basis  of  the  recovery.  It  is  unnecessary 
to  refer  specifically  to  the  items  of  those  expenses.  The  jury 
were,  upon  the  evidence,  permitted  to  find  that,  to  the  amount 
of  the  recovery,  they  were  legitimately  incurred  for  the  pur- 
poses of  the  performance  of  the  contract,  and  that  with  a  view 
to  such  purpose  the  plaintiff  suffered  a  loss  to  that  extent. 
Those  expenses  may  be  deemed  to  have  been  fairly  within 
contemplation  when  the  contract  was  made.  It  cannot  be 
assumed  that  any  part  of  this  loss  would  have  been  sustained 
by  the  plaintiff  if  he  had  been  permitted  to  perform  his  con- 
tract. And  assuming,  as  we  must  here,  that  the  exclusion  of 
the  plaintiff's  company  from  the  use  of  the  opera  house  at  the 
time  in  question  was  caused  by  the  defendants'  breach  of  the 
contract,  the  plaintiffs  loss,  equal  to  the  amount  of  his 
expenses  legitimately  and  essentially  incurred  for  the  purpose 
of  its  performance,  was  the  consequence  of  their  default,  and 
properly  recoverable  by  him.  Driggs  v.  D wight,  17  Wend. 
71 ;  Giles  v.  O'Toole,  4  Barb.  261  ;  Taylor  v.  Bradley,  39 
N.  Y.  129,  142.  These  views  lead  to  the  conclusion  that  none 
of  the  exceptions  were  well  taken,  and  that  the  judgment 
should  be  affirmed. 


CHAPTER  XV. 

DAMAGES   FOR   THE  DEATH   OF   A   HUMAN   BEING. 


GRAND   TRUNK   RAILWAY  v.  JENNINGS. 
Privy  Council,  1888.     13  App.  Cas.  800. 

Lord  Watson.  This  appeal  is  taken  in  an  action  brought 
by  the  respondent  in  the  Court  of  Queen's  Bench,  Ontario, 
for  damages  in  respect  of  the  death  of  her  husband,  the  late 
William  Jennings ;  her  right  to  recover  being  founded  upon 
c.  135  of  the  Consolidated  Statutes  of  Ontario,  ss.  2  and  3, 
which  are  expressed  in  substantially  the  same  terms  with  the 
1st  and  2nd  sections  of  the  English  statute,  9  &  10  Vict.  c. 
93,  commonly  known  as  Lord  Campbell's  Act.  The  deceased, 
who  was  a  healthy  man,  forty-one  years  of  age,  lost  his  life 
on  the  10th  of  August,  1885,  through  the  negligence  of  the 
appellants'  servants.  He  had  been  for  upwards  of  eighteen 
years  in  the  employment  of  the  American  Express  Company, 
and  had  for  a  considerable  time  been  earning  wages  at  the 
rate  of  $75  per  month.  He  left  no  estate,  real  or  personal, 
but  he  was  a  member  of  the  Ancient  Order  of  United  Work- 
men, a  benefit  society,  with  which  he  had  effected  a  life  policy 
for  $2000,  payable  to  the  respondent ;  and  the  sum  insured 
was  paid  to  her  in  full  after  his  decease. 

At  the  trial  of  the  cause  the  appellants'  counsel  asked  Chief 
Justice  Wilson,  the  presiding  judge,  to  direct  the  jury  that, 
inasmuch  as  the  sum  of  $2000  was  not  for  the  benefit  of  the 
deceased,  but  was  immediately  payable  to  the  respondent  in 
respect  of  his  death,  they  ought  to  deduct  it  from  the  amount 


GRAND   TRUNK  RAILWAY  v.  JENNINGS.  565 

which  they  might  assess  as  damages.  The  learned  Chief 
Justice  refused  to  give  the  direction.  The  appellants  then 
obtained  an  order  nisi  on  the  ground,  inter  alia,  that  the  judge 
had  erred  in  not  directing  the  jury  to  deduct  the  amount  of 
the  policy  on  the  life  of  the  deceased  from  the  amount  of  the 
verdict.  The  order  nisi  was  discharged  by  the  Queen's 
Bench  Division,  and  their  judgment  was  affirmed  by  the 
Court  of  Appeal  for  Ontario. 

In  ruling  the  point  thus  raised  against  the  appellants,  the 
learned  judges  of  the  Courts  of  Ontario  considered  themselves 
bound  by  the  authority  of  Beckett  v.  Grand  Trunk  Railway 
Company,1  which  was  finally  decided,  on  appeal  from  Ontario, 
by  the  Supreme  Court  of  Canada.  In  that  case,  which  was 
very  similar  in  its  circumstances  to  the  present,  the  judge 
presiding  at  the  trial  directed  the  jury  to  deduct  $2500,  the 
amount  of  an  insurance  policy  on  the  life  of  the  deceased, 
from  the  sum  at  which  they  estimated  the  pecuniary  loss 
sustained  by  his  wife  and  children  through  his  death  ;  and 
the  jury  following  the  direction  assessed  damages  at  $3250. 
An  order  obtained  by  the  plaintiffs  to  shew  cause  why  the 
verdict  should  not  be  increased  by  the  sum  of  $2500  so  de- 
ducted was  made  absolute  by  a  Divisional  Court  of  the 
Queen's  Bench,  and  judgment  entered  for  the  plaintiffs  for 
the  sum  of  $5750  with  costs.  In  the  Court  of  Appeal  for 
Ontario,  and  also  in  the  Court  of  Appeal  for  Canada,  the 
case  gave  rise  to  much  difference  of  judicial  opinion  ;  but,  in 
both,  the  decision  of  the  Divisional  Court  was  upheld. 

In  this  appeal  the  appellants  have  raised  precisely  the  same 
point  which  they  unsuccessfully  pressed  in  Beckett's  Case.1 
They  have  never,  in  the  courts  below,  suggested  that  the 
receipt  of  the  insurance  money  by  the  widow  was  merely  one 
of  the  circumstances  which  ought  to  be  taken  into  account  by 
the  jury  in  estimating  her  pecuniary  loss  ;  their  contention 
has  all  along  been,  that  the  primary  duty  of  the  jury  is  to 
assess  damages,  irrespective  of  any  such  consideration,  and 
that  the  Court  or  the  jury  are  then  bound,  as  matter  of  law, 
1  13  Upper  Canada  Court  of  Appeal  Rep.  174. 


566  CASES  ON  DAMAGES. 

to  deduct  from  the  damages  assessed  on  that  footing  the  full 
amount  paid  to  the  widow  under  the  policy.  It  is  true  that, 
in  the  reasons  of  appeal  appended  to  their  case,  the  appel- 
lants plead  alternatively  that  the  jury  ought  "  at  least,  in 
awarding  such  damages,  to  take  the  receipt  of  the  said  insur- 
ance mone}T  by  the  respondent  into  their  consideration"  ;  but 
litigants  who  have  excepted  to  the  presiding  judge's  refusal 
to  give  a  direction  in  law,  which,  if  given,  would  practically 
have  withdrawn  the  insurance  money  from  the  consideration 
of  the  jury,  cannot  be  permitted  to  impeach  their  verdict  for 
the  first  time  in  a  court  of  review,  on  the  ground  that  the 
judge  ought  to  have  given  a  direction  the  very  reverse  of  that 
for  which  they  insisted  at  the  trial.  Unless,  therefore,  it  can 
be  shewn  that  every  cent  of  the  $2000  paid  to  the  respondent, 
on  account  of  the  policy  upon  her  husband's  life  must,  as 
matter  of  law,  be  deducted  from  the  $6000  found  by  the 
verdict  of  the  jury,  the  present  appeal  must  fail. 

In  Beckett's  Case,  as  well  as  in  the  present,  all  the  Courts 
below  have  justly  held  that  the  right  conferred  by  statute  to 
recover  damages  in  respect  of  death  occasioned  b}-  wrongful 
act,  neglect,  or  default,  is  restricted  to  the  actual  pecuniary 
loss  sustained  by  each  individual  entitled  to  sue.  In  some 
circumstances,  that  principle  admits  of  eas}'  application;  but 
in  others,  the  extent  of  loss  depends  upon  data  which  cannot 
be  ascertained  with  certainty,  and  must  necessarily  be  matter 
of  estimate,  and,  it  may  be,  partly  of  conjecture.  When  a 
man  has  no  means  of  his  own,  and  earns  nothing,  it  is  ob- 
vious that  his  wife  or  children  cannot  be  pecuniary  losers  by 
bis  decease.  In  like  manner,  when  b}-  his  death  the  whole 
estate  from  which  he  derived  his  income  passes  to  his  widow, 
or  to  his  child  (as  was  the  case  in  Pyme  v.  Great  Northern 
Railway),1  no  statutory  claim  will  lie  at  their  instance.  A 
very  different  case  arises  when  the  means  of  the  deceased 
have  been  exclusively  derived  from  his  own  exertions, 
whether  physical  or  intellectual.  It  then  becomes  necessary 
to  consider  what,  but  for  the  accident  which  terminated  his 
i  2  B.  &  S.  759;  S.  C.  4  B.  &  S.  396. 


GEAND   TRUNK  RAILWAY  v.  JENNINGS.  567 

existence,  would  have  been  his  reasonable  prospects  of  life, 
work,  and  remuneration  ;  and  also  how  far  these,  if  realized, 
would  have  conducted  to  the  benefit,  of  the  individual  claim- 
ing compensation. 

Their   Lordships   are   of   opinion   that   all   circumstances 
which,  though  insufficient  to  exclude  a  statutory  claim,  may 
be  legitimately  pleaded  in  diminution  of  it,  ought  to  be  sub- 
mitted   to   the  jury,  whose  special   function  it  is  to  assess 
damage,  with  such  observations  from  the  presiding  judge  as 
may  be  suggested  by  the  facts  in  evidence.     It  appears  to 
their  Lordships  that  money  provisions  made  by  a  husband, 
for  the  maintenance   of  his  widow,  in  whatever  form,  are 
matters  proper  to  be  considered  by  the  jury  in  estimating  her 
loss  ;  but  the  extent,  if  any,  to  which  these  ought  to  be  im- 
puted in  reduction  of  damages  must  depend  upon  the  nature 
of  the  provision  and  the  position  and  means  of  the  deceased. 
When  the  deceased  did  not  earn  his  own  living,  but  had  an 
annual   income  from  property,   one  half  of  which  has  been 
settled  upon  his  widow,  a  jury  might  reasonably  come  to  the 
conclusion  that,  to  the  extent  of  that  half,  the  widow  was 
not  a  loser  by  his  death,  and  might  confine  their  estimate  of 
her  loss  to  the  interest  which  she  might  probably  have  had  in 
the  other  half.     Very  different  considerations  occur  when  the 
widow's  provision  takes   the  shape  of  a  policy  on   his  own 
life,  effected  and  kept  up  by  a  man  in  the  position  of  the 
deceased  William  Jennings.     The  pecuniary   benefit   which 
accrued   to  the  respondent  from  his  premature  death,  con- 
sisted in  the  accelerated  receipt  of  a  sum  of  money,  the  con- 
sideration for  which  had  already  been  paid  by  him,  out  of  his 
earnings.     In  such  a  case,  the  extent  of  the  benefit  may  fairly 
be  taken  to  be  represented  by  the  use  or  interest  of  the  money 
during  the  period  of  acceleration  ;  and  it  was  upon  that,  foot- 
ing that  Lord  Campbell,  in  Hicks  v.  Newport,  &c,  Railway 
Company,1    suggested   to  the  jury   that,    in  estimating   the 
widow's  loss,  the  benefit  which  she  derived  from  acceleration 
might  be  compensated  by  deducting  from  their  estimate  of 
i  4  B.  &  S.  403,  n. 


568  CASES  ON  DAMAGES. 

the  future  earnings  of  the  deceased  the  amount  of  the  premi- 
ums which,  if  he  had  lived,  he  would  have  had  to  pay  out  of 
his  earnings  for  the  maintenance  of  the  policy. 

For  these  reasons,  their  Lordships  are  unable  to  affirm  that 
the  exception  taken  by  the  appellants  to  the  ruling  of  the  pre- 
siding judge  is  well-founded.  They  are  not  disposed  to 
regret  the  result,  because  it  appears  that  the  learned  judge 
excluded  from  the  consideration  of  the  jury  all  chances  of 
the  deceased's  having  obtained  a  rise  of  wages,  or  of  his 
having  been  able  to  make  some  further  provision  for  his 
widow.  They  will  humbly  advise  Her  Majesty  that  the 
judgment  of  the  Court  of  Appeal  for  Ontario  ought  to  be 
affirmed,  and  the  appeal  dismissed.  The  appeal  being  ex 
parte,  there  will  be  no  order  as  to  costs. 


TILLEY  v.  HUDSON   RIVER  RAILROAD. 

New  York,  1864.     29  N.  Y.  252. 

The  action  was  brought  by  the  plaintiff  as  administrator  of 
his  wife  to  recover  damages  sustained  by  her  death  from 
injuries  alleged  to  have  been  caused  by  the  negligence  of  the 
defendant.1 

Hogeboom,  J.  The  charge  of  the  judge  was  explicit  that 
the  damages  must  be  limited  to  pecuniary  injuries  ;  and  he 
said  that  in  estimating  them  they  had  a  right  to  consider 
the  loss  (that  is,  the  pecuniary  loss)  which  the  children  had 
sustained  in  reference  to  their  mother's  nurture,  and  instruc- 
tion, and  moral,  physical,  and  intellectual  training.  I  think 
this  does  not  imply  that  the  children  are  necessarily  and  inev- 
itably subjected  to  such  a  loss,  but  leaves  it  to  the  jury  to 
determine  whether  any  such  loss  has  been  in  fact  sustained, 
and  if  so,  the  amount  of  such  loss.  This  is  the  fair  scope 
and  meaning  of  the  charge,  and  if  it  was  not  sufficiently 

i  The  statement  of  facts  and  parts  of  the  opinion  have  been  omitted. 


TILLEY  v.   HUDSON  RIVER  RAILROAD.  569 

explicit,  should  have  been  made  so  b}T  a  direct  request  for 
such  purpose.  This  understood,  I  regard  it  as  unexcep- 
tionable. It  is  certainly  possible,  and  not  only  so  but  highly 
probable,  that  a  mother's  nurture,  instruction  and  training,  if 
judiciously  administered,  will  operate  favorably  upon  the 
worldly  prospects  and  pecuniary  interests  of  the  child.  The 
object  of  such  training  and  education  is  not  simply  to  pre- 
pare them  for  another  world,  but  to  act  well  their  part  in  this, 
and  to  promote  their  temporal  welfare.  If  they  acquire 
health,  knowledge,  a  sound  bodily  constitution  and  ample 
intellectual  development  under  the  judicious  training  and  dis- 
cipline of  a  competent  and  careful  mother,  it  is  very  likely 
to  tell  favorably  upon  their  pecuniary  interests.  These  are 
better,  even  in  a  pecuniary  or  mercenary  point  of  view,  than 
a  feeble  constitution,  impaired  health,  intellectual  ignorance 
and  degradation  and  moral  turpitude.  To  sustain  the  charge 
it  is  enough  that  these  circumstances  might  affect  their  pecu- 
niary prospects.  It  was  left  to  the  jury  to  say  whether  in  the 
given  case  they  did  so  or  not,  and  if  so,  to  what  extent.  It 
is  no  answer  to  this  view  to  say  that  wealth  is  sometimes 
associated  with  infirm  health,  mental  degradation  and  moral 
turpitude.  Cases  of  this  kind  do  occur,  but  they  do  not  make 
the  rule,  nor  tend  to  show  that  the  healthy  growth  and  expan- 
sion of  the  physical,  intellectual  and  moral  powers  with  which 
a  kind  providence  has  endowed  us  do  not  tend  to  our  worldly 
advantage.  I  do  not  understand  from  the  phraseology  of 
the  statute  that  an  extremely  nice  and  contracted  interpreta- 
tion should  be  put  upon  the  term  "pecuniary  injuries."  A 
liberal  scope  was  designedly  left  for  the  action  of  the  jury. 
They  are  to  give  such  damages  as  they  shall  deem  a  fair  and 
just  compensation  with  reference  to  the  pecuniary  injuries 
resulting  from  such  death.  They  are  not  tied  down  to  any  pre- 
cise rule.  Within  the  limit  of  the  statute  as  to  amount,  and  the 
species  of  injury  sustained,  the  matter  is  to  be  submitted  to 
their  sound  judgment  and  sense  of  justice.     They  must  be 


570  CASES   ON  DAMAGES. 

satisfied  that  pecuniary  injuries  resulted.  If  so  satisfied, 
they  are  at  liberty  to  allow  them  from  whatever  source  they 
actually  proceeded  which  could  produce  them.  If  they  are 
satisfied  from  the  history  of  the  family,  or  the  intrinsic  prob- 
abilities of  the  case,  that  the}-  were  sustained  by  the  loss  of 
bodily  care,  or  intellectual  culture,  or  moral  training,  which 
the  mother  had  before  supplied,  they  are  at  liberty  to  allow 
for  it.  The  statute  has  set  no  bounds  to  the  sources  of 
these  pecuniary  injuries.  If  the  rule  is  a  dangerous  one,  and 
liable  to  abuse,  the  legislature  and  not  the  courts  must  apply 
the  corrective. 

The  charge  is  supposed  to  have  been  particularly  objec- 
tionable because  it  set  before  the  jury  moral  training  and 
the  jury  were  at  liberty  to  consider.  It  would  be  an  effec- 
tual though  technical  answer  to  this  exception  to  say  that 
the  charge  was  not  objected  to  specifically  on  that  ground, 
and  that  if  the  charge  is  sustainable  on  the  score  of  physical 
and  mental  training  supplied  by  the  mother,  it  cannot  be 
rejected  as  erroneous  because  in  the  same  sentence  moral 
culture  was  included  without  a  specific  objection.  But  I  think 
it  defensible  on  the  grounds  already  advanced,  that  moral 
culture,  like  bodily  health  and  mental  development,  improve 
and  perfect  the  man  and  fit  him  not  only  for  a  more  useful 
but  a  more  prosperous  career,  for  worldly  success  as  well  as 
social  consideration.  It  is  not  essential  to  show  that  they 
necessarily  result  in  direct  pecuniar}'  advantage ;  it  is  suffi- 
cient that  they  may  do  so;  that  they  often  do  so;  that  it  is 
possible  and  not  improbable  that  such  may  be  the  result, 
and  that,  therefore,  these  items  may  be  set  forth  and  pre- 
sented for  the  consideration  and  deliberation  of  the  jury,  to 
be  disposed  of  as  they  shall  deem  to  be  just.  I  think  the 
exception  is  not  well  taken  if  they  may  possibly  result  in 
pecuniary  benefit  and  do  not  tend  in  a  contrary  direction. 
I  concede  these  are  quite  general  and  to  some  extent  loose 
and  indefinite  elements  to  enter  into  a  safe  and  judicious 


TILLEY  v.   HUDSON  RIVER  RAILROAD.  571 

estimate  of  actual  pecuniary  damage,  but  I  am  unable  to  find 
in  the  statute  a  restriction  which  shall  confine  it  within  nar- 
rower limits. 

Nor  do  I  perceive  any  sufficient  legal  reason  for  limiting 
the  damages  to  the  minority  of  the  children  if  the  juiy  are 
legally  pursuaded  they  would  continue  after  that  age.  It 
cannot  be  denied  that  the  deprivation  of  parental  instruction 
and  training  and  discipline,  after  that  age,  is  more  or  less 
detrimental  to  the  child  in  a  pecuniary  point  of  view,  and  I 
see  no  arbitrary  injunction  in  the  statute  peremptorily  to 
exclude  such  considerations  from  the  jury.  The  judge  seems 
to  have  submitted  this  part  of  the  case  to  the  jur}r  with 
cautious  directions.  He  instructed  the  jury  that  if  the}T  could, 
under  the  evidence,  fairly  conclude  that  the  children,  at  any 
age,  would  receive  pecuniary  benefit  from  the  instructions 
and  counsel  of  the  mother,  the}-  were  entitled  to  allow  for  it 
such  damages  as  would  naturally  and  proximately  result. 
The  judge  further  charged  that  beyond  the  age  of  twenty-one 
years  the  jury  must  proceed  with  the  caution,  and  allow  only 
those  damages  which,  under  the  evidence,  they  should  find 
would  and  did  reasonably  and  proximatel}'  result  from  the 
death  of  the  mother  by  the  wrongful  act  of  the  defendants. 
He  further  stated  to  the  jury  that  he  did  not  charge  that  the 
jury  must  allow  for  damages  beyond  twenty -one  years.  Assum- 
ing, as  I  think  we  must,  that  there  is  not,  either  in  the 
statute  or  in  principle,  an}r  peremptory  injunction  to  confine 
the  damages  absolutely  to  the  minority  of  the  children,  the 
case  seems  to  have  been  put  to  the  jury  on  this  point  with 
proper  limitations. 

Nor  do  I  think  it  was  erroneous  to  instruct  the  jury  that 
while  they  must  assess  the  damages  with  reference  to  the 
pecuniary  injuries  sustained  by  the  next  of  kin  in  consequence 
of  the  death  of  Mrs.  Tille}',  they  were  not  limited  to  the  losses 
actually  sustained  at  the  precise  period  of  her  death,  but 
might  include  also   prospective  losses,  provided  they  were 


572  CASES  ON  DAMAGES. 

such  as  the  jury  believed,  from  the  evidence,  would  actually 
result  to  the  next  of  kin  as  the  proximate  damages  arising 
from  the  wrongful  death. 

If  damages  of  the  character  alluded  to,  to  wit :  those  aris- 
ing from  the  deprivation  of  the  training  and  education  which 
the  parent  would  bestow  were  allowable  at  all,  the  loss  which 
the  children  would  sustain  by  the  death  must  necessarily  be 
such  as  should  arise  from  the  nurture  and  training  to  be  sub- 
sequently bestowed.  That  which  had  been  already  given,  and 
of  which  the  children  had  already  reaped  the  benefit,  could 
not  be  increased  by  the  continued  life  of  the  parent,  nor  cur- 
tailed by  her  sudden  death.  The  result  had  been  already 
realized.  But  her  sudden  and  wrongful  removal  was  the 
withdrawal  —  the  permanent  and  perpetual  withdrawal  —  of 
a  moral  and  intellectual  fund  from  which  the  children  were 
constantly  deriving  pecuniary  aliment  and  support.  And  it 
is  this  withdrawal  which  formed  the  basis  of  the  whole  allow- 
ance for  any  damage  arising  from  this  source.  The  length 
of  time  such  benefit  would  have  been  enjoyed  was  left  to  the 
jury,  under  proper  instructions.  They  were  charged  to  find  it 
from  the  evidence;  they  were  charged  to  limit  the  recovery 
to  such  damages  as  would  actually  result,  and  to  such  dam- 
ages as  were  proximate  and  not  remote. 

The  only  remaining  question  concerns  the  admission  of 
evidence  in  relation  to  the  capacity  of  the  mother  to  conduct 
business  and  make  money. 

If  the  results  already  announced  rest  on  a  sound  founda- 
tion, then  this  evidence  was  proper,  as  aiding  the  jury  in 
arriving  at  a  proper  result  in  regard  to  the  pecuniary  benefit 
which  the  mother  was  to  her  children,  and  the  capacity  of 
the  mother  to  bestow  such  training,  instruction  and  education 
as  would  be  pecuniarily  serviceable  to  the  children  in  after 
life.  It  is  not  denied  that  if  the  mother  had,  bj-  her  indus- 
try and  business  capacity,  acquired  a  certain  pecuniary  cap- 
ital, the  amount  of  it  would  be  proper  to  be  proved.     Would 


DEMAREST  v.   LITTLE.  573 

it  be  improper  to  show  that  it  was  likely  to  be  increased  by 
her  industry,  her  economy,  her  capacity  for  business  and  her 
judicious  conduct  of  business  affairs?  All  these  are  elements 
of  pecuniary  success  —  component  parts  in  fact  of  that  pecu- 
niary capital,  of  the  continued  exercise  and  employment  of 
which  the  children  were  entitled  to  the  benefit,  and  of  which 
the  wrongful  act  of  the  defendants  deprived  them.  This  was 
evidence,  moreover,  of  the  circumstances,  situation,  engage- 
ments and  surroundings  of  the  family,  which  seems  on  gen- 
eral principles  always  proper  to  give  with  the  view  of  daguerre- 
otyping  to  the  jury  the  actual  condition  of  affairs,  which  it  is 
so  important  for  them  to  understand,  the  extent  and  details 
of  which  must  generally  be  left  to  the  sound  discretion  of  the 
trial  judge.  It  contains  no  positive  illegal  element,  and  may 
often  be  of  essential  service  in  giving  to  the  jury  a  practical 
view  of  the  case. 


DEMAREST  v.  LITTLE 

New  Jersey,  1885.     47  X.  J.  L.  28. 

Magie,  J.  This  action  was  brought  to  recover  damages 
for  the  death  of  plaintiffs'  testator,  which  occurred  in  the  dis- 
aster at  Parker's  Creek  bridge,  on  the  Long  Branch  Railroad, 
on  June  29,  1882.  Defendant  was  charged  with  responsi- 
bility therefor  as  receiver  of  the  Central  Railroad  Company 
of  New  Jerse}-,  and  as  having,  in  that  capacity,  contracted 
to  carry  deceased  with  due  care. 

The  case  was  first  tried  in  1883,  and  a  verdict  rendered  for 
plaintiffs,  assessing  their  damages  at  $30,000.  This  verdict 
was  afterwards  set  aside  upon  a  rule  to  show  cause.  No 
opinion  was  delivered,  but  the  court  announced  that  a  new 
trial  was  allowed  because  the  damages  were  excessive.  The 
case  has  been  again  tried,  and  the  verdict  has  been  again 
rendered  for  plaintiffs,  assessing  their  damages  at  §27,500. 


574  CASES  ON  DAMAGES. 

A  rule  to  show  cause  was  allowed  and  is  now  sought  to  be 
made  absolute  upon  the  following  grounds  :  first,  that  the  evi- 
dence was  not  sufficient  to  justify  the  conclusion  that  testa- 
tor's death  was  due  to  negligence  or  want  of  care ;  second, 
that  if  so,  defendant,  as  receiver,  was  not  liable  for  any  negli- 
gence except  his  own,  while  the  alleged  negligence  was 
that  of  employees ;  and  third,  that  the  damages  awarded 
are   excessive. 

Upon  the  first  ground  it  was  urged  that  the  evidence  upon 
this  trial  was  variant  from  and  more  favorable  to  defendant 
than  that  produced  on  the  former  trial.  Whether  that  be  so 
or  not,  a  careful  perusal  of  the  evidence  satisfies  me  that 
there  was  sufficient  to  warrant  the  conclusion  that  testator's 
death  was  due  to  negligence  or  want  of  proper  care. 

The  second  objection  has  already  been  disposed  of  in  a 
case  growing  out  of  this  same  disaster,  and  in  which  the 
Court  of  Errors  has  affirmed  the  responsibility  of  the  re- 
ceiver for  such  negligence.  Woodruff's  Adm'r  v.  Little, 
Receiver,  17  Vroom,  614.,  The  verdict  ought  not  to  be  dis- 
turbed on  those  grounds. 

The  question  presented  by  the  claim  that  the  damages  are 
excessive  is  of  more  difficulty.  The  action  is  created  by 
statute  which  supplies  the  sole  measure  of  the  damages  re- 
coverable therein.  They  are  to  be  determined  exclusively  by 
reference  to  the  pecuniary  injury  resulting  to  the  widow  and 
next  of  kin  of  deceased  by  his  death.  The  injury  to  be  thus 
recovered  for  has  been  defined  by  this  court  to  be  "  the  dep- 
rivation of  a  reasonable  expectation  of  a  pecuniary  advan- 
tage which  would  have  resulted  by  a  continuance  of  the  life 
of  deceased."  Paulmier  v.  Erie  Railway  Co.,  5  Vroom,  151. 
Compensation  for  such  deprivation  is  therefore  the  sole 
measure  of  damage  in  such  cases.  A  difficult  task  is  thereby 
imposed  upon  a  jury,  for  they  are  obliged  to  determine  proba- 
bilities, and  "  must,  to  a  large  extent,  form  their  estimate  of 
damages  on  conjectures  and  uncertainties."  But  the  case  in 
hand  seems  to  present  less  complicated  problems  than  other 
cases  of  the  same  nature. 


DEMAREST  v.   LITTLE.  575 

Deceased  left  no  widow,  and  but  three  children.  All  of 
them  had  reached  maturity.  Two  sons  were  self-supporting  ; 
the  daughter  was  married.  He  owed  no  present  duty  of 
support,  and  there  is  nothing  to  show  any  fixed  allowance  or 
even  casual  benefactions  to  them.  The}-  were  therefore 
deprived  of  no  immediate  pecuniary  advantage  derivable 
from  him.  At  his  death  he  was  in  business,  in  partnership 
with  his  sons  and  son-in-law.  All  the  partners  gave  atten- 
tion to  the  business,  and  the  capital  was  furnished  by  de- 
ceased. His  death  dissolved  the  partnership,  and  deprived 
the  surviving  partners  of  such  benefit  as  they  had  derived 
from  his  credit,  capital,  skill,  and  reputation.  But  the  injury 
thus  resulting  is  not  within  the  scope  of  this  statute,  which 
gives  damages  for  injuries  resulting  from  the  severance  of  a 
relation  of  kinship  and  not  of  contract.  No  damages  could 
be  awarded  on  that  ground. 

Defendants  strenuously  urge  that,  outside  of  the  partner- 
ship, or  in  the  event  of  its  dissolution,  the  next  of  kin  had  a 
reasonable  expectation  of  deriving  from  the  parental  relation 
an  advantage  by  way  of  services  rendered  or  counsel  given 
by  deceased  in  their  affairs.  A  claim  of  this  sort  must  be 
carefully  restricted  within  the  limits  of  the  statute.  The 
counsels  of  a  father  may,  in  a  moral  point  of  view,  be  of 
inestimable  value.  The  confidential  intercourse  between 
parent  and  child  ma}*  be  prized  beyond  measure,  and  its 
deprivation  may  be  productive  of  the  keenest  pain.  But  the 
legislature  has  not  seen  fit  to  permit  recoveiy  for  such 
injuries.  It  has  restricted  recovery  to  the  pecuniary  injury; 
that  is,  the  loss  of  something  having  pecuniary  value. 

Now  it  may  with  some  reason  be  anticipated  that  a  father, 
out  of  love  and  affection,  might,  if  circumstances  rendered  it 
proper,  perform  gratuitous  service  for  a  child,  which,  by 
rendering  unnecessary  the  employment  of  a  paid  servant, 
would  be  of  pecuniar}"  value,  and  that  he  might,  by  advice  in 
respect  to  business  affairs,  be  of  a  possible  pecuniary  benefit. 
But  whether  such  an  anticipation  is  reasonable  or  not  must 
depend   on   the   circumstances.      Considering   the   age,   the 


576  CASES  ON  DAMAGES. 

assured  position,  the  business  and  other  relations  of  these 
children,  it  is  obvious  that  the  probability  of  any  pecuniary 
advantage  to  accrue  to  them  in  these  modes  was  very  small. 
Indeed  it  would  not  be  too  much  to  say  that  resort  must  be 
had  to  speculation  to  discover  any  such  advantage.  At  all 
events,  compensation  for  this  injury  in  this  case  could  not 
exceed  a  small  sum  without  being  excessive. 

The  principal  basis  for  plaintiffs'  claim  is  obviously  this : 
that  the  death  of  deceased  put  an  end  to  accumulations 
which  he  might  have  thereafter  made  and  which  might  have 
come  to  the  next  of  kin.  Deceased  had  accumulated  about 
$70,000,  all  of  which,  except  $10,000  capital  invested  in  the 
business,  seems  to  have  been  placed  in  real  estate  and  securi- 
ties as  if  for  permanent  investment.  By  his  will  the  bulk  of 
his  property  was  given  to  his  children.  At  his  death  he  had 
no  other  sources  of  income  than  his  investments  and  his 
business. 

In  determining  the  probability  of  accumulations  by  de« 
ceased  if  he  had  continued  in  life,  no  account  should  be 
taken  of  the  income  derivable  from  his  investments.  These 
have  come  in  bulk  to  the  children,  who  ma}-,  if  the}'  choose, 
accumulate  such  income.  A  deprivation  of  the  probability 
of  his  accumulating  therefrom  is  no  pecuniary  injury.  On 
the  contrary,  it  is  rather  a  benefit  to  them  to  receive  at  once 
the  whole  fund  in  lieu  of  the  mere  contingency  or  probability 
of  receiving  it,  though  with  its  accumulations  (at  best  uncer- 
tain) in  the  future.  Indeed,  the  benefit  thus  accruing  to  the 
next  of  kin  in  receiving  at  once  this  whole  property,  in  the 
view  of  one  of  the  court,  is  at  least  equivalent  to  the  present 
value  of  the  probability  of  their  receiving  it  hereafter,  if  de- 
ceased had  continued  in  life,  with  all  his  probable  future 
accumulations  from  any  source  whatever,  in  which  case  it  is 
evident  that  his  death  has  not  resulted  in  any  pecuniary 
injury  to  them.  But  without  adopting  this  view  of  the 
evidence,  it  is  plain  that  in  determining  probable  future 
accumulations  attention  should  be  restricted  to  such  as 
would  arise  from  the  labor  of  deceased  in  his  business.     His 


DEMAREST   v.   LITTLE.  577 

receipts  from  the  business  for  the  two  years  it  bad  been  con- 
ducted were  proved.  What  be  expended  was  not  proved, 
but  left  to  be  inferred  from  his  mode  of  life.  At  death  he 
was  about  fifty-six  and  a  half  years  old,  and  by  the  proofs 
had  an  expectation  of  life  of  sixteen  and  seven-tenths 
years. 

From  these  facts  the  jury  were  to  find  what  deceased  would 
probably  have  accumulated,  what  probability  there  was  that 
his  next  of  kin  would  have  received  his  accumulations,  and 
then  what  sum  in  hand  would  compensate  them  for  being 
deprived  of  that  probability.  In  what  manner  the  jury  at- 
tempted to  solve  this  problem  we  cannot  ascertain.  Plain- 
tiffs' counsel  attempts  to  show  the  correctness  of  the  result 
reached,  by  calculation.  He  assumes  the  income  of  de- 
ceased from  his  business  during  the  last  year  as  the  annual 
income  likely  to  be  obtained,  and  deducts  only  $1,000  each 
year  as  the  probable  expenditure  of  deceased,  and  then  finds 
the  present  worth  of  the  net  income  so  determined  for  the 
deceased's  expectation  of  life  is  $27,710.32. 

This  calculation  tests  the  propriety  of  this  verdict,  and  in 
my  judgment  conclusively  shows  that  it  was  rather  the  result 
of  sympathy  or  prejudice  than  a  fair  deduction  from  the 
evidence.  For,  assuming  the  amount  attributable  to  the  loss 
of  deceased's  services  was  but  small  (and  if  more  it  was  ex- 
cessive), the  award  of  the  jury  on  this  account  was  but  a 
few  hundred  dollars  less  than  the  present  worth  of  the  full 
net  income  if  received  for  his  full  expectancy  of  life.  To 
reach  such  a  result  the  jury  must  have  found  every  one  of 
the  following  contingencies  in  favor  of  the  next  of  kin.  viz.  : 
that  deceased,  who  had  already  acquired  a  competence. 
would  have  continued  in  the  toil  of  business  for  his  full  ex- 
pectancy of  life ;  that  he  would  have  retained  sufficient 
health  of  body  and  vigor  of  mind  to  enable  him  to  do  so, 
and  as  successfully  as  before;  that  he  would  have  been 
able  to  avoid  the  losses  incident  to  business,  and  would  have 
safely  invested  his  accumulations  ;  and  that  the  next  of  kiu 
would   have  received   such  accumulations  at  his  death.     A 

37 


578  CASES   ON  DAMAGES. 

verdict  which  attributes  no  more  weight  than  this  has,  to  the 
probability  that  one  or  more  of  all  these  contingencies  would 
happen,  cannot  have  proceeded  from  a  fair  consideration  of 
the  case  made  by  the  evidence. 

Having  reached  this  conclusion,  what  should  be  the  result 
as  to  the  verdict? 

The  charge  of  the  court  below  declared  the  rule  of  dam- 
ages with  accuracy.  The  verdict  is  a  second  one,  and  some- 
what smaller  than  that  previously  set  aside  as  excessive.  It 
is  unusual  to  set  aside  a  second  verdict,  but  though  unusual 
it  is  within  the  power  of  the  court  in  the  exercise  of  its  dis- 
cretion. That  power  will  be  discreetl}'  used  in  setting  aside 
airy  verdict  which  does  palpable  injustice. 

To  obviate,  if  possible,  the  necessity  of  another  trial,  it 
has  been  determined  that  if  plaintiffs  will  reduce  their  ver- 
dict to  $15,000  by  remitting  the  excess,  the  verdict  may 
stand  for  that  sum,  and  the  rule  to  show  cause  be  dis- 
charged. Unless  the}*  consent  to  such  remission,  the  rule 
must  be  made  absolute. 


WIEST  v.   ELECTRIC   TRACTION   COMPANY. 

Pennsylvania,  1901.     200  Pa.  148. 

Trespass  for  death  of  plaintiff's  husband. 

Potter  J.1  In  that  portion  of  the  charge  which  is  assigned 
as  error  in  the  first  specification,  the  learned  court  below 
said  : 

"  This  loss  to  the  children,  of  course,  was  one  from  whom 
they  might  expect  some  inheritance,  if  you  think  the  business 
was  such  as  to  warrant  them  in  that  hope." 

This  statement  presented  to  the  consideration  of  the  jury 
an  element  in  measuring  the  damages,  which  is  extremely 
vague.  The  possibility  of  accumulating  an  estate  by  the 
decedent  was  very  remote.     The  testimony  did  not  show  any 

1  Part  of  the  opinion  is  omitted. 


WIEST  v.  ELECTRIC   TRACTION  COMPANY.         579 

accumulation  up  to  the  time  of  his  death,  and  whether  or  not 
he  could  have  succeeded  in  gathering  more  than  would  have 
provided  for  his  own  wants  during  the  remainder  of  his  life, 
was  purely  conjectural.  If  the  subject  were  considered  at  all 
by  the  jury  in  making  up  the  verdict,  it  could  only  result  in 
confusion  and  speculation.  An  expectation  of  inheritance  is 
not  properby  one  of  the  elements  of  loss  to  children,  in  a  case 
of  this  kind,  and  should  not  be  allowed  to  enter  into  the 
question,  in  any  way  whatever.  The  first  specification  is 
sustained. 


CHAPTER   XVI. 

DAMAGES   IN   EMINENT   DOMAIN. 


RADCLIFF  v.  MAYOR  OF  BROOKLYN. 
New  York,  1850.     4  N.  Y.  195. 

Bronson,  C.  J.1  The  common  council  of  the  city  of 
Brooklyn  has  ample  authority  to  lay  out,  open,  grade,  level 
and  pave  streets  within  the  city.  When  lands  are  taken  for 
a  street,  the  owner  is  to  he  paid  his  damages,  to  he  assessed 
by  commissioners.  But  there  is  no  provision  for  paying  con- 
sequential damages,  or  such  as  may  result  to  persons  whose 
lands  are  not  taken.  Stat.  1833,  p.  449,  §§  1,  2,  16;  id. 
1838,  p.  119,  §§  1,  2.  Such  is  my  construction  of  the  stat- 
utes touching  the  question. 

Furman  Street,  lying  west  of  and  adjoining  the  testator's 
premises,  had  been  laid  out  prior  to  the  digging  of  which 
the  plaintiffs  complain  ;  but  it  had  not  then  been  opened  or 
used  as  a  highway.  The  digging  was  done  in  the  site  of  the 
street  for  the  purpose  of  grading  and  levelling  the  same  for 
public  use.  There  was  no  excavation  or  any  other  act  done 
by  the  defendants  in  or  upon  the  testator's  land.  But  in  con- 
sequence of  digging  away  the  bank  in  the  site  of  the  street, 
which  was  a  natural  support  of  the  testator's  land,  a  portion 
of  his  premises  fell  into  the  street,  and  he  suffered  damage. 
There  is  no  charge  that  the  defendants  acted  maliciousby,  nor 
do  the  pleadings  impute  to  them  any  want  of  skill  or  care  in 
doing  the  work.  The  defendants  are  a  public  corporation, 
and  the  act  in  question  was  done  for  the  benefit  of  the  public 
*  Part  of  the  opinion  is  omitted. 


RADCLIFF  v.  MAYOR  OF  BROOKLYN.  581 

and  under  ample  authority,  if  the  legislature  had  power  to 
grant  the  authority,  without  providing  for  the  payment  of 
such  consequential  damages  as  have  fallen  upon  the  testator. 
Our  constitution  provides  that  private  property  shall  not  be 
taken  for  public  use  without  just  compensation.  But  I  am 
not  aware  that  this,  or  any  similar  provision  in  the  constitu- 
tions of  other  states,  has  ever  been  held  applicable  to  a  case 
like  this.  Although  the  testator's  property  has  suffered  dam- 
age, I  find  no  precedent  for  saying  that  it  has  been  "taken 
for  public  use,"  within  the  meaning  of  the  constitution.  .  .  . 

If  the  statute  under  which  the  defendants  acted  is  con- 
stitutional, it  is  settled  that  they  are  not  answerable  to  third 
persons,  whatever  damage  they  may  have  suffered.  Indeed, 
it  is  absurd  to  say  that  public  officers  may  be  liable  to  an 
action  for  what  they  have  done  under  lawful  authority  and 
in  a  proper  manner.  Private  property  cannot  be  taken  for 
public  use  without  making  just  compensation  to  the  owner, 
and  a  law  which  authorizes  the  taking  without  providing  for 
compensation  must  be  unconstitutional  and  void.  But  laws 
which  authorize  the  opening  and  improving  of  streets  and 
highways,  or  the  construction  of  other  works  of  a  public 
nature,  have  never  been  held  void  because  they  omitted  to 
provide  compensation  for  those  who,  though  their  property 
was  not  taken,  suffered  indirect  or  consequential  damages. 
The  loss  which  they  sustain  has  always  been  regarded  as 
damnum  absque  injuria.  The  question  was  considered  in 
Callender  v.  Marsh,  1  Pick.  430  ;  and  although  that  case  and 
the  case  of  Thurston  v.  Hancock,  12  Mass.  220,  have  to  some 
extent  been  questioned  in  a  dissenting  opinion  of  Mr.  Justice 
Story,  11  Peters,  638,  and  by  Chancellor  Kent,  2  Kent,  340, 
note,  6th  ed.,  I  think  the  constitution  does  not  apply  where 
the  damages  are  merely  consequential.  Our  general  highway 
laws  have  never  provided  for  the  payment  of  such  damages  ; 
and  such  also  is,  I  believe,  the  fact  in  all  the  numerous  cases 
where  cities  and  villages  in  this  state  have  been  authorized 
to  open  and  improve  streets  and  highways.  Such  laws  have 
never  been  thought  unconstitutional,  and  no  one  can  calculate 


582  CASES  ON  DAMAGES. 

the  mischiefs  which  would  ensue  should  we  now  declare  them 
void.  There  are  many  other  laws  which  present  the  same 
general  question,  but  it  will  be  enough  to  refer  to  one  or  two 
by  way  of  illustration.  The  Albany  Basin  worked  a  serious 
injury  to  the  owners  of  docks  on  the  west  side  of  the  river, 
and  yet,  as  the  damage  was  not  direct,  but  only  consequen- 
tial, the  law  which  authorized  the  erection  of  the  basin  was 
held  constitutional,  although  it  did  not  provide  for  compensa- 
tion to  the  dock  owners.  Lansing  v.  Smith,  8  Cowen,  146. 
This  judgment  was  affirmed  by  the  court  of  errors.  4  Wend.  9. 
And  a  law  which  authorizes  a  new  bridge  near  to  and  on  the 
same  line  of  travel  with  an  existing  toll  bridge,  and  which  in 
its  consequences  destroys  the  whole  value  of  the  old  fran- 
chise, is  constitutional,  although  it  makes  no  provision  for 
paying  damages  to  the  owners  of  the  old  bridge.  Charles 
River  Bridge  v.  Warren  Bridge,  11  Peters,  420.  Other  illus- 
trations might  be  added,  but  they  cannot  be  necessary. 

If  any  one  will  take  the  trouble  to  reflect,  he  will  find  it  a 
very  common  case  that  the  property  of  individuals  suffers  an 
indirect  injury  from  the  constructing  of  public  works,  and  yet 
I  find  but  a  single  instance  of  providing  for  the  payment  of 
damages  in  such  a  case.  Brown  v.  City  of  Lowell,  8  Mete. 
172.  The  opening  of  a  new  thoroughfare  may  often  result 
in  advancing  the  interest  of  one  man  or  a  class  of  men,  and 
even  one  town,  at  the  expense  of  another.  The  construc- 
tion of  the  Erie  Canal  destroyed  the  business  of  hundreds  of 
tavern  keepers  and  common  carriers  between  Albany  and 
Buffalo,  and  greatly  depreciated  the  value  of  their  property, 
and  yet  they  got  no  compensation.  And  new  villages  sprung 
up  on  the  line  of  the  canal  at  the  expense  of  old  ones  on  the 
former  line  of  travel  and  transportation.  Railroads  destroy 
the  business  of  stage  proprietors,  and  yet  no  one  has  ever 
thought  a  railroad  charter  unconstitutional  because  it  gave 
no  damages  to  stage  owners.  The  Hudson  River  railroad 
will  soon  drive  many  fine  steamboats  from  the  river,  but  no 
one  will  think  the  charter  void  because  it  does  not  provide 
for  the  payment  of  damages  to  the  boat  owners.    A  fort,  jail, 


RADCLIFF  v.  MAYOR  OF  BROOKLYN.  583 

workshop,  fever  hospital,  or  lunatic  asylum,  erected  by  the 
government,  may  have  the  effect  of  reducing  the  value  of  a 
dwelling  house  in  the  immediate  neighborhood,  and  yet  no 
provision  for  compensating  the  owner  of  the  house  has  ever 
been  made  in  such  a  case.  Many  other  illustrations  might  be 
mentioned,  but  it  cannot  be  necessary  to  enlarge. 

The  opening  of  a  street  in  a  city  is  not  necessarily  an  in- 
jury to  the  adjoining  landowners  ;  on  the  contrary,  it  is  in 
almost  every  instance  a  benefit  to  them.  The  damage  which 
they  sometimes  sustain  because  the  level  of  the  street  does 
not  correspond  with  the  level  of  their  land  is  usually  more 
than  compensated  by  the  increased  value  which  the  property 
acquires  from  having  a  new  front  on  a  street.  In  some  in- 
stances the  landowner  will  suffer  a  heavy  loss,  and  this  case 
may  perhaps  be  one  of  the  number  ;  but  it  is  damnum  absque 
injuria,  and  the  owner  must  bear  it.  He  often  gets  the 
benefit  for  nothing  when  the  value  of  his  land  is  increased 
by  opening  or  improving  a  street  or  highway,  and  he  must 
bear  the  burden  in  the  less  common  case  of  a  depreciation  in 
value  in  consequence  of  the  work.  It  may  be  added  that 
when  men  buy  and  build  in  cities  and  villages,  they  usually 
take  into  consideration  all  those  things  which  are  likely  to 
affect  the  value  of  their  property,  and  particularly  what  will 
probably  be  done  by  way  of  opening  and  grading  streets  and 
avenues. 

Whether  in  cases  of  this  kind  the  legislature  ought  as  a 
matter  of  equity  to  provide  for  the  payment  of  such  damages 
as  are  merely  consequential  we  are  not  called  upon  to  decide. 
It  is  enough  for  us  to  say  that  a  law  which  makes  no  such 
provision  is  not  for  that  reason  unconstitutional  and  void. 

I  am  of  opinion  that  the  judgment  of  the  Supreme  Court  is 
right,  and  should  be  affirmed. 

Judgment  affirmed. 


584  CASES  ON  DAMAGES. 

BEALE   y.    BOSTON. 

Massachusetts,  1896.     166  Mass.  53. 

Allen,  J.1  The  petitioner  had  bought  a  tract  of  ten  acres 
of  land,  and  laid  it  out  into  house  lots  and  streets,  one  of  the 
streets  being  called  Tuttle  Street,  which  he  had  built  and 
graded.  He  had  sold  various  lots,  with  rights  of  way  and 
drainage,  but  with  no  ownership  of  the  fee  in  Tuttle  Street, 
and  he  owned  other  lots  abutting  thereon,  as  well  as  some 
other  land  near  by,  abutting  on  another  street  running  from 
Tuttle  Street  at  right  angles.  .   .  . 

The  petitioner  retained  the  ownership  of  Tuttle  Street,  sub- 
ject to  rights  of  way  and  drainage  which  he  had  granted 
therein.  This  title  might  not  be  salable  in  the  ordinary  course 
of  dealing,  and  yet  it  might  have  a  real  value  to  him,  for 
which  he  was  entitled  to  be  paid.  The  damage  to  abutting 
lots  could  be  measured  by  the  diminution,  if  any,  of  market 
value.  Lots  not  abutting  were  properly  excluded  from  con- 
sideration as  too  remote,  and  only  affected  in  common  with 
the  rest  of  the  neighborhood.  The  petitioner  was  entitled  to 
compensation  for  his  interest  which  was  taken  in  Tuttle 
Street,  and  for  the  injury,  if  any,  to  his  remaining  lots  which 
abutted  thereon.  Taking  both  together,  how  much  loss  did 
he  suffer?  How  much  less  was  the  value  of  what  he  had  left, 
after  the  taking,  than  the  value  of  the  whole  before  the  tak- 
ing? Lincoln  v.  Commonwealth,  164  Mass.  368,  376.  So 
far  as  the  abutting  lands  are  concerned,  regard  should  be  had 
to  the  market  value;  but  so  far  as  his  interest  in  Tuttle 
Street  is  concerned,  other  considerations  come  in. 

The  court  excluded  evidence  of  the  fair  value  of  the  im- 
provement made  by  the  petitioner  in  grading  Tuttle  Street, 
and  in  putting  a  sewer  into  it,  and  also  the  increased  cost  of 
building  on  the  petitioner's  remaining  abutting  lots,  by  reason 
of  the  existing  city  ordinances  and  regulations  applicable  to 

1  Part  of  the  opinion  is  omitted. 


CHICAGO   v.   TAYLOR.  585 

public  streets,  and  the  increased  cost  of  removing  the  sand, 
sod,  and  loam  therefrom.  But  in  estimating  the  loss  to  the 
petitioner  we  think  all  these  particulars  might  be  considered, 
not  as  showing  independent  and  distinct  items  to  be  added  to 
his  loss  (Squire  v.  Somerville,  120  Mass.  579),  but  as  ele- 
ments which  might  be  considered  in  determining  the  real 
value  of  what  he  had  before  the  taking,  and  of  what  he  had 
afterwards.  Central  Bridge  v.  Lowell,  15  Gray,  106,  111  ; 
Cushing  v.  Boston,  144  Mass.  317  ;  Butchers'  Slaughtering 
&  Melting  Association  v.  Commonwealth,  163  Mass.  386; 
Manson  v.  Boston,  163  Mass.  479. 


CHICAGO   v.   TAYLOR. 
United  States,  1888.     125  U.  S.  161. 

Harlan,  J.  This  action  was  brought  by  Moses  Taylor,  as 
owner  of  an  undivided  interest  in  a  lot  in  Chicago,  having 
sixty  feet  front  on  Lumber  Street,  one  hundred  and  fifty  feet 
on  Eighteenth  Street,  and  three  hundred  feet  on  the  South 
Branch  of  Chicago  River,  to  recover  the  damages  sustained  b}' 
reason  of  the  construction,  by  that  city,  of  a  viaduct  on  Eigh- 
teenth Street,  in  the  immediate  vicinity  of  said  lot.  The  city 
did  this  work  under  the  power  conferred  by  its  charter  "  to 
lay  out,  establish,  open,  alter,  widen,  extend,  grade,  pave,  or 
otherwise  improve  streets,  alleys,  avenues,  sidewalks,  wharves, 
parks,  and  public  grounds,  and  vacate  the  same,"  and  "  to 
construct  and  keep  in  repair  bridges,  viaducts,  and  tunnels, 
and  to  regulate  the  use  thereof."  It  appears  that  the  con- 
struction of  the  viaduct  was  directed  by  special  ordinances 
of  the  city  council. 

For  many  }'ears  prior  to,  as  well  as  at,  the  time  this  via- 
duct was  built,  the  lot  in  question  was  used  as  a  coal  yard, 
having  upon  its  sheds,  machinery,  engines,  boilers,  tracks,  and 
other  contrivances  required  in  the  business  of  bu\ing,  stor- 
ing, and  selling  coal.  The  premises  were  long  so  used,  and 
they  were  peculiarly  well  adapted  for  such  business.     Thero 


586  CASES  ON  DAMAGES. 

was  evidence  before  the  jury  tending  to  show  that,  by  reason 
of  the  construction  of  the  viaduct,  the  actual  market  value  of 
the  lot,  for  the  purposes  for  which  it  was  specially  adapted,  or 
for  any  other  purpose  for  which  it  was  likely  to  be  used,  was 
materially  diminished,  access  to  it  from  Eighteenth  Street 
being  greatly  obstructed,  and  at  some  points  practically  cut 
off ;  and  that,  as  a  necessary  result  of  this  work,  the  use  of 
Lumber  Street,  as  a  way  of  approach  to  the  coal  yard  by  its 
occupants  and  buyers,  and  as  a  way  of  exit  for  teams  carry- 
ing coal  from  the  yard  to  customers,  was  seriously  impaired. 
There  was,  also,  evidence  tending  to  show  that  one  of  the 
results  of  the  construction  of  the  viaduct,  and  the  approaches 
on  either  side  of  it  to  the  bridge  over  Chicago  River,  was, 
that  the  coal  yard  was  often  flooded  with  water  running  on  to 
it  from  said  approaches,  whereby  the  use  of  the  premises,  as 
a  place  for  handling  and  storing  coal  was  greatly  interfered 
with,  and  often  became  wholly  impracticable. 

On  behalf  of  the  city  there  was  evidence  tending  to  show 
that  the  plaintiff  did  not  sustain  any  real  damage,  and  that 
the  inconveniences  to  occupants  of  the  premises,  resulting 
from  the  construction  and  maintenance  of  the  viaduct,  were 
common  to  all  other  persons  in  the  vicinity,  and  could  not  be 
the  basis  of  an  individual  claim  for  damages  against  the  city. 

There  was  a  verdict  and  judgment  against  the  city.  The 
court  below  having  refused  to  set  aside  the  judgment  and 
grant  a  new  trial,  the  case  has  been  brought  here  for  review 
in  respect  to  errors  of  law  which,  it  is  contended,  were  com- 
mitted in  the  admission  of  incompetent  evidence,  in  the  refusal 
of  instructions  asked  by  the  city,  and  in  the  charge  of  the 
court  to  the  jury. 

Before  noticing  the  assignments  of  error  it  will  be  well  to 
ascertain  what  principles  have  been  announced  by  this  court 
or  by  the  Supreme  Court  of  Illinois  in  respect  to  the  liability 
of  municipal  or  other  corporations  in  that  State,  for  damages 
resulting  to  owners  of  private  property  from  the  alteration  or 
improvement,  under  legislative  authority,  of  streets  and  other 
public  highways. 


CHICAGO  v.  TAYLOR.  587 

By  the  constitution  of  Illinois,  adopted  in  1848,  it  was  pro- 
vided that  no  man's  property  shall  "  be  taken  or  applied  to 
public  use  without  just  compensation  being  made  to  him," 
Art.  XIII,  §  11.  While  this  constitution  was  in  force  Chicago 
commenced,  and  substantially  completed,  a  tunnel  under  Chi- 
cago River,  along  the  line  of  La  Salle  Street,  in  that  city.  It 
was  sued  for  damages  by  the  Northern  Transportation  Com- 
pany, owning  a  line  of  steamers  running  between  Ogdensburg, 
New  York,  and  Chicago,  and  also  a  lot  in  the  latter  city,  with 
dock  and  wharfage  pri\  ileges,  the  principal  injury  of  which  it 
complained  being  that,  during  the  prosecution  of  the  work  by 
the  city,  it  was  deprived  of  access  to  its  premises,  both  on  the 
side  of  the  river  and  on  that  of  the  street.  This  court  —  in 
Transportation  Co.  v.  Chicago,  9(J  U.  S.  635,  641  —  held  that 
in  making  the  improvement  of  which  the  plaintiff  complained 
the  city  was  the  agent  of  the  State,  performing  a  public  dutj- 
imposed  by  the  legislature  ;  and  that  "  persons  appointed  or 
authorized  by  law  to  make  or  improve  a  highway  are  not 
answerable  for  consequential  damages,  if  they  act  within  their 
jurisdiction,  and  with  care  and  skill,  is  a  doctrine  almost  uni- 
versally accepted,  alike  in  England  and  in  this  country,"  — 
citing  numerous  cases,  among  others  Smith  v.  Corporation  of 
Washington,  20  How.  135.  "  The  decisions  to  which  we  have 
referred,"  the  court  continued,  "  were  made  in  view  of  Magna 
Charta,  and  the  restriction  to  be  found  in  the  constitution  of 
every  State,  that  private  property  shall  not  be  taken  for  public 
use  without  just  compensation  being  made.  But  acts  done  in 
proper  exercise  of  governmental  powers,  and  not  directly  en- 
croaching upon  private  property,  though  their  consequences 
may  impair  its  use,  are  universally  held  not  to  be  a  taking 
within  the  meaning  of  the  constitutional  provision.  They  do 
not  entitle  the  owner  of  such  property  to  compensation  from 
the  State  or  its  agents,  or  give  him  any  right  of  action." 
This  view,  the  court  further  said,  was  not  in  conflict  with  the 
doctrine  announced  in  Pumpelly  v.  Green  Bay  Co.,  13  Wall. 
166,  which  was  a  case  of  the  permanent  flooding  of  private 
property,  a  physical  invasion  of  the  real  estate  of  the  private 
owner,  a  practical  ouster  of  his  possession. 


588  CASES  ON  DAMAGES. 

In  City  of  Chicago  v.  Ramsey,  87  Illinois,  348,  363,  the  Su- 
preme Court  of  Illinois,  upon  a  full  review  of  previous  decis- 
ions and  especially  referring  to  Moses  v.  Pittsburg,  Fort 
Wayne  &  Chicago  R.  R.  Co.,  21  Illinois,  516;  Roberts  v. 
Chicago,  26  Illinois,  249  ;  Murphy  v,  Chicago,  29  Illinois, 
279;  Stone  v.  Fairbury,  Pontiac  and  Northwestern  Railroad 
Co.,  68  Illinois,  394;  Stetson  v.  The  Chicago  and  Evanston 
Railroad  Co.,  75  Illinois,  74,  and  Chicago,  Burlington  and 
Quincy  Railroad  Co.  v.  McGinnis,  79  Illinois,  269,  held  it  to 
have  been  the  settled  law  of  that  State,  up  to  the  time  of  the 
adoption  of  the  constitution  of  1870,  that  there  could  be  "  no 
recovery  by  an  adjacent  property  holder,  on  streets  the  fee 
whereof  is  in  the  city,  for  the  merely  consequential  damages 
resulting  from  the  character  of  the  improvements  made  in 
the  streets,  provided  such  improvement  has  the  sanction  of 
the  legislature." 

But  the  present  case  arose  under,  and  must  be  determined 
with  reference  to,  the  constitution  of  Illinois  adopted  in  1870, 
in  which  the  prohibition  against  the  appropriation  of  private 
property  for  public  use,  without  compensation,  is  declared  in 
different  words  from  those  employed  in  the  constitution  of 
1848.  The  provision  in  the  existing  constitution  is  that 
"private  property  shall  not  be  taken  or  damaged  for  public 
use  without  just  compensation."  An  important  inquiry  in 
the  present  case  is  as  to  the  meaning  of  the  word  "  damaged  " 
in  this  clause. 

The  earliest  case  in  Illinois  in  which  this  question  was  first 
directly  made  and  considered,  is  Rigney  v.  City  of  Chicago, 
102  Illinois,  64,  74,  80.  That  was  an  action  to  recover  dam- 
ages sustained  by  the  plaintiff  by  reason  of  the  construction 
by  Chicago  of  a  viaduct  or  bridge  along  Halsted  Street  and 
across  Kinzie  Street,  in  that  city,  some  220  feet  west  of  his 
premises,  fronting  on  the  latter  street.  There  was  no  claim 
that  the  plaintiff's  possession  was  disturbed,  or  that  any  direct 
physical  injury  was  done  to  his  premises  by  the  structure  in 
question.  But  the  complaint  was,  that  his  communication 
with  Halstead  Street,  by  way  of  Kinzie  Street,  had  been  cut 


CHICAGO   v.  TAYLOR.  589 

off,  whereby  he  was  deprived  of  a  public  right  enjoyed  by 
him  in  connection  with  his  premises,  and  an  injury  inflicted 
upon  him  in  excess  of  that  sustained  by  the  public.  For  that 
special  injury,  in  excess  of  the  injury  done  to  others,  he 
brought  suit.  The  trial  court  peremptorily  instructed  the 
jury  to  find  for  the  city,  holding,  in  effect,  that  the  fee  of 
the  streets  being  in  the  city,  there  could  be  no  recovery  for 
the  obstruction  of  which  the  plaintiff  complained. 

That  judgment  was  reversed,  an  elaborate  opinion  being 
delivered,  reviewing  the  principal  cases  under  the  Constitu- 
tion of  1848,  and  referring  to  the  adjudications  in  the  courts 
of  other  States  upon  the  general  question  as  to  what  amounts 
to  a  taking  of  private  property  for  public  use  within  the 
meaning  of  such  a  provision  as  that  contained  in  the  former 
Constitution  of  Illinois.  After  alluding  to  the  decisions  of 
other  state  courts  to  the  effect  that  such  a  provision  extended 
only  to  an  actual  appropriation  of  property  by  the  State,  and 
did  not  embrace  consequential  injuries,  although  what  was 
done  resulted,  substantially,  in  depriving  the  owner  of  its  use, 
the  Supreme  Court  of  Illinois  reviewed  numerous  cases  deter- 
mined by  it  under  the  Constitution  of  1848.  Nevins  v.  City 
of  Peoria,  41  Illinois,  502,  decided  in  1866  ;  Gillam  v.  Madi- 
son Count}7  Railroad,  49  Illinois,  484;  City  of  Aurora  v.  Gil- 
lett,  56  Illinois,  132  ;  Aurora  v.  Reed,  57  Illinois,  29  ;  City  of 
Jacksonville  v.  Lambert,  62  Illinois,  519;  Toledo,  Wabash,  &c. 
Railroad  v.  Morrison,  71  Illinois,  616.  It  says  :  "  Whatever, 
therefore,  may  be  the  rule  in  other  States,  it  clearly  appears 
from  this  review  of  the  cases  that  previous  to,  and  at  the  time 
of  the  adoption  of  the  present  Constitution,  it  was  the  settled 
doctrine  of  this  court  that  any  actual  physical  injury  to  private 
property  by  reason  of  the  erection,  construction,  or  opera- 
tion of  a  public  improvement  in  or  along  a  public  street  or  high- 
way, whereby  its  appropriate  use  or  enjoyment  was  materially 
interrupted,  or  its  value  substantially  impaired,  was  regarded 
as  a  taking  of  private  property,  within  the  meaning  of  the 
Constitution,  to  the  extent  of  the  damages  thereby  occasioned, 
and  actions  for  such  injuries  were  uniformly  sustained." 


590  CASES  ON  DAMAGES. 

Touching  the  provision  in  the  Constitution  of  1870,  the 
court  said  that  the  framers  of  that  instrument  evidently  had 
in  view  the  giving  of  greater  security  to  private  rights  by 
giving  relief  in  cases  of  hardship  not  covered  by  the  pre- 
ceding Constitution,  and  for  that  purpose  extended  the  right 
to  compensation  to  those  whose  property  had  been  "  dam- 
aged "  for  public  use ;  that  the  introduction  of  that  word,  so 
far  from  being  superfluous  or  accidental,  indicated  a  delib- 
erate purpose  to  make  a  change  in  the  organic  law  of  the 
State,  and  abolished  the  old  test  of  direct  plrysical  injur}-  to 
the  corpus  or  subject  of  the  property  affected.  The  new  rule 
of  civil  conduct,  introduced  by  the  present  Constitution,  the 
court  adjudged,  required  compensation  in  all  cases  where  it 
appeared  "there  has  been  some  physical  disturbance  of  a 
right,  either  public  or  private,  which  the  plaintiff  enjoys  in 
connection  with  his  property,  and  which  gives  to  it  an  addi- 
tional value,  and  that  by  reason  of  such  disturbance  he  has 
sustained  a  special  damage  with  respect  to  his  property  in 
excess  of  that  sustained  by  the  public  generally."  The  chief 
justice  concurred  in  the  judgment,  and  in  the  general  views 
expressed  by  the  court,  holding  that  while  the  owner  of  a  lot 
on  a  street  held  it  subject  to  the  right  of  the  public  to  im- 
prove it  in  any  ordinary  and  reasonable  mode  deemed  wise 
and  beneficial  by  the  proper  public  functionaries,  he  was  en- 
titled, under  the  constitution  of  1870,  to  compensation  in  case 
of  a  sudden  and  extraordinary  change  in  the  grade  of  the 
street  or  highway,  whereby  the  value  of  his  property  is  in  fact 
impaired.    Three  of  the  justices  of  the  state  court  dissented. 

As  we  understand  the  previous  cases  of  Pekin  v.  Brereton, 
67  Illinois,  477  ;  Pekin  v.  Winkel,  77  Illinois,  56  ;  Shawnee- 
town  v.  Mason,  82  Illinois,  337 ;  Elgin  v.  Eaton,  83  Illinois, 
535  ;  and  Stack  v.  St.  Louis,  85  Illinois,  377 ;  —  all  of  which 
arose  under  the  present  Constitution  of  Illinois — they  pro- 
ceeded upon  the  same  grounds  as  those  expressed  in  Rigney 
v.  Chicago,  although  in  no  one  of  them  did  the  court  distinctly 
declare  how  far  the  present  Constitution  differed  from  the 
former,  in  respect  to  the  matter  now  before  us. 


CHICAGO  v.  TAYLOR.  591 

At  the  same  term  when  Rigney's  case  was  decided  the 
state  court  had  occasion  to  consider  this  question  as  pre- 
sented in  a  somewhat  different  aspect.  The  Union  Building 
Association  owned  a  building  and  lot  three  and  a  half  blocks 
from  a  certain  part  of  La  Salle  Street  in  Chicago,  which  the 
city  proposed  to  close  up,  and  permit  to  be  occupied  by  the 
Board  of  Trade  with  its  building.  As  the  streets  adjacent  to 
the  plaintiff's  property  were  to  remain  in  the  same  condition 
as  to  width,  etc.,  that  they  were  in  before,  and  as  the  closing 
up  of  a  portion  of  La  Salle  Street  would  not,  in  any  degree, 
interfere  with  access  to  its  lot,  or  with  the  use  and  enjoyment 
of  it,  it  was  held  that  there  was  no  special  or  particular  injury 
done  for  which  an  action  would  lie  against  the  city.  That 
case  was  distinguished  from  Rigney  v.  Chicago,  in  this,  that 
in  the  latter  case  the  court  held  that  "  property  holders 
bordering  upon  streets,  have,  as  an  incident  to  their  owner- 
ship of  such  propertj*,  a  right  of  access  by  way  of  the  streets, 
which  cannot  be  taken  away  or  material!}-  impaired  by  the 
city  without  incurring  legal  liability  to  the  extent  of  the 
damages  thereby  occasioned."  City  of  Chicago  v.  Union 
Building  Association,   102  Illinois,  379,  397. 

In  Chicago  &  Western  Indiana  Railroad  v.  Ayres,  106  Illi- 
nois, 518,  the  court —  all  the  justices  concurring —  observed  : 
"It  is  needless  to  say  our  decisions  have  not  been  harmonious 
on  this  question,  but  in  the  case  of  Rigney  v.  City  of  Chicago, 
102  Illinois,  G4,  there  was  a  full  review  of  the  decision  of  our 
courts,  as  well  as  the  courts  of  Great  Britain,  under  a  statute 
containing  a  provision  similar  to  the  provision  in  our  Consti- 
tution. The  conclusion  there  reached  was,  that  under  this 
constitutional  provision  a  recovery  may  be  had  in  all  cases 
where  private  property  has  sustained  a  substantial  damage 
by  the  making  and  using  an  improvement  that  is  public  in 
its  character —  that  it  does  not  require  that  the  damage  shall 
be  caused  by  a  trespass,  or  an  actual  physical  invasion  of  the 
owner's  real  estate,  but  if  the  construction  and  operation  of 
the  railroad  or  other  improvement  is  the  cause  of  the  dam- 
age, though  consequential,  the  party  may  recover.     We  re- 


592  CASES  ON  DAMAGES. 

gard  that  case  as  conclusive  of  this  question.  The  case  of 
Pittsburg  &  Fort  Wayne  Railroad  Co.  v.  Reich,  101  Illinois, 
157,  is  in  point  on  this  question  of  damages,  and  the  case  of 
City  of  Chicago  v.  Union  Building  Association,  102  Illinois, 
379,  also  reviews  the  authorities  and  approves  the  doctrine 
in  Rignej'  v.  Chicago,  supra.  These  cases,  therefore,  over- 
rule the  doctrines  of  the  earlier  cases."  Our  attention  has 
not  been  called  to,  nor  are  we  aware  of,  any  subsequent  de- 
cision of  the  State  court  giving  the  Constitution  of  1870  an 
interpretation  different  from  that  indicated  in  Rigney  v.  Chi- 
cago and  Chicago  etc.  Railroad  Co.  v.  Ayxes.  We  concur  in 
that  intepretation.  The  use  of  the  word  "damaged  "in  the 
clause  providing  for  compensation  to  owners  of  private  prop- 
erty, appropriated  to  public  use,  could  have  been  with  no 
other  intention  than  that  expressed  by  the  State  court.  Such 
a  change  in  the  organic  law  of  the  State  was  not  meaningless. 
But  it  would  be  meaningless  if  it  should  be  adjudged  that  the 
constitution  of  1870  gave  no  additional  or  greater  security  to 
private  propert}',  sought  to  be  appropriated  to  public  use, 
than  was  guaranteed  by  the  former  constitution. 

The  charge  to  the  jury  by  the  learned  judge  who  presided 
at  the  trial  gave  effect  to  the  principles  announced  in  the  fore- 
going cases  arising  under  the  present  constitution  of  Illinois. 
It  covered  every  vital  question  in  the  case,  in  language  so 
well  guarded  that  the  jury  could  not  well  have  misunderstood 
the  exact  issue  to  be  tried,  or  the  proper  bearing  of  all  the 
evidence.  So  far  as  the  special  requests  for  instructions  in 
behalf  of  the  city  contained  sound  propositions  of  law  they 
were  fully  embodied  in  the  charge  to  the  jury. 

In  behalf  of  the  city  it  was  contended  that,  if  liable  at  all, 
it  was  only  liable  for  such  damage  as  was  done  to  the  market 
value  of  the  property  by  rendering  access  to  it  difficult  or  in- 
convenient. The  court  said,  in  substance,  to  the  jury  that 
the  flooding  of  the  lot  by  water  running  down  upon  it  from 
the  approaches  to  the  viaduct  was  an  element  of  damage 
which  they  might  consider ;  though  if  such  flooding  merely 
caused  inconvenience  to  the  occupant  in  the  conduct  of  his 


CHICAGO  v.  TAYLOR.  593 

business,  such  as  his  coal  getting  wet  or  its  becoming  more 
difficult  to  keep  his  scales  properly  adjusted,  these  were  not 
elements  of  impairment  to  the  value  of  the  property  for  pur- 
poses of  sale.  The  jury  were  also  instructed  that  although 
the  occupant  may  have  found  it  difficult  to  haul  coal  out  of 
the  lot,  and  although  it  may  have  been  much  more  unprofit- 
able to  conduct  the  business  of  selling  coal  at  this  lot,  that  did 
not  weigh  upon  the  question  as  to  the  value  of  the  lot  in 
the  market.  Other  observations  were  made  to  the  jury,  but  the 
court,  in  different  forms  of  expression,  said  to  them  that 
the  question  was  whether,  by  reason  of  the  construction  of  the 
viaduct,  the  value,  that  is,  the  market  price,  of  the  property 
had  been  diminished.  The  scope  of  the  charge  is  fairly  indi- 
cated in  the  following  extract :  "  The  real  question  is,  has 
the  value  of  this  property  to  sell  or  rent  been  diminished  by 
the  construction  of  this  viaduct?  It  ma}'  be  that  it  can  no 
longer  be  used  for  the  purposes  of  a  coal  yard,  or  for  any 
purpose  for  which  it  has  heretofore  been  used,  but  that 
would  not  be  material  if  it  can  be  rented  or  sold  at  as  good  a 
price  for  other  purposes,  except  that  if  the  proof  satisfies  you 
that  an}-  of  the  permanent  improvements  put  on  the  lot  for 
the  particular  business  which  has  been  heretofore  carried  on 
there  and  for  which  it  was  improved,  have  been  impaired  in 
value,  or  are  not  worth  as  much  after  this  viaduct  was  built 
and  the  bridge  was  raised  as  before,  and  you  can  from  the 
proof  determine  how  much  these  improvements  are  damaged, 
the  plaintiff  would  be  entitled  to  recover  for  such  damage  to 
the  improvements  —  that  is  to  say,  this  lot  being  improved 
for  a  specific  purpose,  if  the  proof  satisfies  you  that  it  can  no 
longer  be  rented  or  used  for  that  purpose,  and  that  thereby 
these  improvements  have  been  lost  or  impaired  in  value,  then 
the  impairment  of  value  to  these  improvements  is  one  of  the 
elements  of  damage  which  the  plaintiff  is  entitled  to  have 
considered  and  passed  upon  and  included  in  his  damage." 
It  would  serve  no  useful  purpose  to  examine  in  detail  all 
the  requests  for  instructions,  and  compare  them  with  the 
charge,  or  discuss  the  questions  arising  upon  exceptions  to 


594  CASES  ON  DAMAGES. 

the  admission  of  evidence.  After  a  careful  consideration  of 
all  the  propositions  advanced  for  the  city,  we  are  unable  to 
discover  any  substantial  error  committed  to  its  prejudice.  It 
may  be,  as  suggested  by  its  counsel,  that  the  present  consti- 
tution of  Illinois,  in  regard  to  compensation  to  owners  of 
private  property  "  damaged"  for  the  public  use,  has  proved 
a  serious  obstacle  to  municipal  improvements  ;  that  the  sound 
policy  of  the  old  rule,  that  private  property  is  held  subject  to 
any  consequential  damages  that  may  arise  from  the  erection 
on  a  public  highway  of  a  lawful  structure,  is  being  constantly 
vindicated  ;  and  that  the  constitutional  provision  in  question 
is  "  a  handicap  "  upon  municipal  improvement  of  public  high- 
ways. And  it  may,  also,  be,  as  is  suggested,  doubtful  whether 
a  constitutional  convention  could  now  be  convened  that  would 
again  incorporate  in  the  organic  law  the  existing  provision  in 
regard  to  indirect  or  consequential  damage  to  private  prop- 
erty so  far  as  the  same  is  caused  by  public  improvements. 
We  dismiss  these  several  suggestions  with  the  single  obser- 
vation that  they  can  be  addressed  more  properly  to  the  people 
of  the  State  in  support  of  a  proposition  to  change  their 
constitution. 

We  perceive  no  error  in  the  record,  and  the  judgment  is 

Affirmed. 


SHARP  v.   UNITED   STATES. 

United  States,  1903.     191  U.  S.  341. 

Peckham,  J.1  It  appears  that  long  before  the  com- 
mencement of  these  proceedings  there  was  a  government 
reservation  at  this  point  on  the  Delaware  River,  upon  which 
Fort  Mott  had  been  erected.  This  reservation  had  a  front- 
age on  that  river,  and  ran  back  quite  a  number  of  feet,  in 
some  places  nearly  two  thousand.  Permanent  fortifications 
had  already  been  erected,  and  placements  for  heavy  ordnance 
already  built  on  this  reservation,  together  with  magazines 
1  Part  of  the  opinion  is  omitted. 


SHARP  v.   UNITED   STATES.  595 

and  other  appurtenances  for  the  firing  of  large  guns.  The 
particular  tract  to  be  taken,  namely,  all  of  the  Gibbons  farm 
of  41.75  acres,  lies  on  parts  of  thiee  sides  of  the  government 
reservation,  and  a  portion  of  it  fronts  on  the  Delaware  River, 
the  same  as  the  reservation  itself.  It  was  purchased  in  1891 
for  $6000.  The  Dunham  farm,  of  eighty  acres,  was  pur- 
chased in  1880  for  $5800,  by  the  wife  of,  and  subsequently 
conveyed  by  her  to,  the  plaintiff  in  error;  the  White  farm, 
also  of  eighty  acres,  was  purchased  in  1899,  a  little  over  a 
month  before  the  commencement  of  these  proceedings  for 
$5200.  These  three  tracts  of  adjoining  land,  one  of  which 
only  was  taken,  thus  appear  to  have  come  to  the  present 
owner  by  three  separate  titles  at  three  distinct  times,  running 
over  a  period  of  about  twentj-  years.  The  evidence  returned 
in  the  bill  of  exceptions,  which  does  not  purport  to  contain 
all  the  evidence  given  on  the  trial,  does  not  show  very  clearly 
the  exact  condition  of  these  various  tracts  at  the  time  of  their 
purchase  by  the  plaintiff  in  error,  but  the  judge,  in  his  charge 
to  the  jury,  evidently  referred  to  evidence  on  this  subject 
which  does  not  appear  in  the  bill,  and  was  not  corrected  by 
counsel,  and  no  exception  was  taken  to  the  statement.  We 
may,  therefore,  properly  regard  his  references  to  the  testi- 
mony actually  given,  but  part  of  which  does  not  appear,  as 
correct  recitals  of  the  same.  The  judge  stated  that  the  Dun- 
ham farm,  which  adjoins  the  one  taken,  has  eighty  acres  in  it 
and  600  feet  front  on  the  river.  The  farm  had  on  it  a  dwel- 
ling house  and  barns  and  such  buildings  as  ordinarily  and, 
perhaps,  necessarily  go  with  a  farm  of  that  size  and  character 
in  that  neighborhood.  The  land  that  was  purchased  in  1891 
(the  farm  to  be  taken)  then  had  a  dwelling  house,  a  barn,  a 
carriage  house  and  such  outbuildings  as  ordinarily  go  with  a 
farm  of  that  size  and  character.  Then  the  White  farm  con- 
sisted of  eighty  acres,  and  had  a  farm  house  on  it  and  build- 
ings but  no  water  front,  and  one  had  to  go  through  a  lane  of 
some  kind  to  get  to  it.  The  testimony  was,  as  stated  in  the 
judge's  charge,  that  these  farms,  including  the  White  farm 
up  to  1899,  when  it  was  purchased  by  the  plaintiff  in  error, 


596  CASES  ON  DAMAGES. 

were  always  worked  separately,  each  having  its  separate 
dwelling  house  and  outbuildings.  It  must  be  assumed  that 
the  statements  of  the  court  were  correct  statements  of  the 
testimony.  If  not,  the  bill  of  exceptions  should  have  shown 
it,  and  some  question  made  at  the  time  in  regard  to  the  erro- 
neous character  of  the  charge  upon  the  facts.  Error  must 
appear  in  the  record  and  cannot  be  presumed. 

The  map  contained  in  the  record  shows  a  highway  between 
these  tracts.  From  all  the  evidence  which  can  be  gathered 
from  the  record  it  plainly  appears  to  us  that  these  tracts  of 
land  were  absolutely  separate  and  independent  farms,  having 
no  necessary  relation  with  each  other,  and  the  farming  on 
each  had  been  conducted  separately,  and  each  farm  had  its 
own  house  and  outbuildings.  It  is  these  facts  which  form 
the  foundation  of  the  charge  of  the  court  to  the  jury. 

We  are,  therefore,  not  only  permitted  but  bound  to  regard 
the  evidence  in  the  record  as  supplemented  by  the  statement 
of  the  evidence  by  the  court. 

Upon  the  facts  which  we  have  detailed,  we  think  the  plain- 
tiff in  error  was  not  entitled  to  recover  damages  to  the  land 
not  taken  because  of  the  probable  use  to  which  the  govern- 
ment would  put  the  land  it  proposed  to  take.  If  the  re- 
maining land  had  been  part  of  the  same  tract  which  the 
government  seeks  to  condemn,  then  the  damage  to  the  re- 
maining portion  of  the  tract  taken,  arising  from  the  probable 
use  thereof  by  the  government,  would  be  a  proper  subject  of 
award  in  these  condemnation  proceedings.  But  the  govern- 
ment takes  the  whole  of  one  tract.  If  the  evidence  were 
such  as  to  leave  it  a  matter  of  some  doubt  whether  the  land 
owned  by  the  plaintiff  in  error  were  one  tract  or  separated 
into  three  separate  and  distinct  tracts,  it  would  be  proper  to 
leave  that  question  to  the  jury,  with  the  instruction  that  if 
they  found  that  it  was  one  tract,  then  damages  might  be 
awarded,  and  refused  if  they  were  separate  and  independent 
tracts.  Upon  this  subject  it  was  well  stated  by  Judge  Gray, 
delivering  the  opinion  of  the  Circuit  Court  of  Appeals,  as 
follows : 


SHARP  v.  UNITED  STATES.  597 

"  Depreciation  in  the  value  of  the  residue  of  such  a  tract 
may  properly  be  considered  as  allowable  damages  in  adjust- 
ing the  compensation  to  be  given  to  the  owner  for  the  land 
taken.  It  is  often  difficult,  when  part  of  a  tract  is  taken,  to 
determine  what  is  a  distinct  and  independent  tract;  but  the 
character  of  the  holding,  and  the  distinction  between  the 
residue  of  a  tract  whose  integrity  is  destroyed  by  the  taking 
and  what  are  merely  other  parcels  or  holdings  of  the  same 
owner,  must  be  kept  in  mind  in  the  practical  application  of 
the  requirement  to  render  just  compensation  for  property 
taken  for  public  uses.  How  it  is  applied  must  largely  depend 
upon  the  facts  of  the  particular  case  and  the  sound  discretion 
of  the  court.  All  the  testimony  in  this  case  tends  to  show 
the  separateness  of  this  tract  which  was  the  subject  of  the 
condemnation  proceedings.  It  had  never  been  farmed  or 
used  in  connection  with  either  of  the  other  farms  owned  by 
the  plaintiff  in  error.  It  was  in  no  way  reasonably  or  sub- 
stantially necessary  to  the  enjoyment  of  the  other  two  tracts. 
Separated  from  it  by  a  public  road,  the  '  White'  farm,  so 
called,  had  only  been  purchased  by  plaintiff  in  error  ten  days 
before  the  proceedings  for  condemnation  were  begun.  The 
authorities  cited  by  the  defendant  in  error  fully  support  their 
contention  in  this  respect.  In  Currie  v.  Waverly  &c.  R.  R. 
Co.,  23  Vroom,  392,  cited  by  counsel  for  plaintiff  in  error  for 
the  proposition  that,  where  a  part  of  a  tract  is  taken  for  con- 
demnation damages  to  the  remaining  land  shall  be  given,  the 
court  also  says:  'It  is  an  established  rule  in  law,  in  pro- 
ceedings for  condemnation  of  land,  that  the  just  compen- 
sation which  the  land  owner  is  entitled  to  receive  for  his 
lands  and  damages  thereto  must  be  limited  to  the  tract  a 
portion  of  which  is  actually  taken.  The  propriety  of  this 
rule  is  quite  apparent.  It  is  soleby  by  virtue  of  his  owner- 
ship of  the  tract  invaded  that  the  owner  is  entitled  to  inci- 
dental damages.  His  ownership  of  other  lands  is  without 
legal  significance.'  It  is  enough  to  say  that,  in  our  opinion, 
the  two  other  farms  or  tracts  of  land  owned  by  plaintiff  in 
error  constituted  such  separate  and  independent  parcels  as 


598  CASES  ON  DAMAGES. 

regards  the  land  in  question  that  they  cannot  property  be 
spoken  of  as  the  residue  of  a  tract  of  land  from  which  the 
land  in  question  was  taken." 

If  A  own  a  single  house  in  a  block  in  a  city  and  the  gov- 
ernment proposes  to  take  it,  is  it  liable  to  the  owner  of  the 
house  adjoining  for  a  depreciation  in  its  value  by  reason  of 
the  taking  of  the  house  of  A  for  the  purposes  proposed?  In 
other  words,  would  the  government  be  liable  to  the  owner  of 
land  not  taken  for  damages  which  were  incidental  because  of 
the  use  intended  by  the  government  of  the  property  it  took? 
In  such  case  no  property  of  the  owner  of  the  other  land  is 
taken,  and  although  very  great  damage  might  be  inflicted 
upon  him  by  the  use  of  the  property  taken,  has  he  a  consti- 
tutional right  of  recompense?  It  would  be  within  the  dis- 
cretion of  Congress  to  provide  that  this  damage  should  be 
paid  to  the  owner  of  the  land  not  taken,  yet  still  in  proceed- 
ings to  condemn  a  property  for  public  use  on  payment  of 
"just  compensation,"  under  the  Constitution,  we  cannot 
think  (in  the  absence  of  Congressional  action  to  that  effect) 
that  the  government  would  be  liable  for  consequential  dam- 
ages sustained  Try  a  part}',  no  portion  of  whose  property  was 
taken.  Although  the  present  is  not  exactly  such  a  case,  yet 
the  illustration  serves  to  somewhat  bring  out  the  principle 
under  review. 

If  again,  the  government  seek  to  take  the  property  of  A, 
consisting  of  a  single  house  in  a  city,  and  he  has  also  ac- 
quired, through  a  separate  title  and  at  a  different  time, 
houses  adjoining,  would  the  government  be  liable  to  A  for 
the  damage  sustained  by  that  other  property  on  account  of 
the  use  the  government  proposes  to  make  of  the  property 
taken?  Or  again,  if  A  purchase  a  block  of  vacant  lots  in  a 
city  from  one  source  and  at  one  time  and  erect  a  row  of 
buildings  thereon,  and  one  building  the  government  seeks 
to  take,  would  the  government  be  liable  for  the  damages 
sustained  by  the  other  houses  by  reason  of  the  uses  to  which 
it  would  put  the  building  taken?  These  are  questions  in- 
volving different  facts  which  may  possibly  show  the  various 


SHARP  v.  UNITED   STATES.  599 

difficulties  inhering  in  the  subject  under  some  circumstances. 
See  Lincoln  v.  Commonwealth,  164  Massachusetts,  368,  and 
Wellington  v.  Boston  &  Maine  Railroad,  164  Massachusetts, 
380 ;  but  in  the  case  before  us  those  difficulties  do  not,  in 
our  judgment,  exist.  There  are  here  separate  and  distinct 
farms  conducted  under  the  circumstances  detailed,  and  we 
cannot  see  that  the  owner  of  those  separate  farms  not  taken 
established  any  right  of  payment  for  damages  to  them  aris- 
ing from  the  use  which  the  government  intended  to  make  of 
the  land  it  took. 

Although  denying  the  right  to  recover  certain  alleged  dam- 
ages to  the  land  remaining,  the  court  was  not  illiberal  in  the 
rules  it  adopted  for  ascertaining  the  compensation  due  for 
the  taking  of  the  land.  It  permitted  the  jury  to  consider 
not  only  the  purposes  to  which  the  land  taken  had  been  put, 
but  also,  as  bearing  upon  its  value,  the  jury  was  directed  to 
consider  evidence  as  to  the  adaptability  of  the  land  for  other 
than  merely  agricultural  purposes ;  that  while  no  merely 
speculative  value  was  to  be  placed  on  the  land,  this  possible 
adaptability  was  to  be  considered,  and  if  in  the  judgment  of 
the  jury  it  was  probable  that  the  improvements  which  had 
been  spoken  of  in  the  testimony  would  within  some  reasona- 
ble time  be  made,  that  was  an  element  which  might  enter 
into  their  calculation  in  forming  their  estimate  of  the  value  of 
the  land. 

Therefore  the  jury  was  permitted  to  take  into  considera- 
tion the  future  possible  building  of  a  railroad  in  the  neigh- 
borhood which  would  pass  within  a  mile  or  so  of  Fort  Mott, 
although  no  steps  had  yet  been  taken  to  build  it ;  still  as  there 
had  been  some  talk  of  building  it,  and  the  railroad  might 
thereafter  be  built,  the  jury  were  instructed  that  if  they 
thought  from  the  evidence  it  would  be  built  within  a  reason- 
able time,  and  that  if  built  it  would  enhance  the  value  of  the 
property,  they  might  take  that  fact  into  consideration  as  giv- 
ing the  then  present  actual  value  beyond  that  of  an  ordinary 
farm . 

The  same  instructions  were  given  in  relation  to  a  trolley 


600  CASES  ON  DAMAGES. 

road  which  it  was  supposed  might  be  built  to  run  near  this 
land. 

The  jurv  was  also  permitted  to  consider  the  adaptability 
of  the  land  for  a  hotel  or  cottage  sites,  and  in  addition,  as 
already  stated,  the  court  charged  that  if  the  evidence  showed 
that  by  reason  of  the  severance  of  these  farms  they  were 
made  so  small  that  it  would  be  unprofitable  to  work  them, 
the  jury  ought  to  give  the  damages  arising  therefrom. 

The  last  assignment  of  error  arose  from  the  charge  of  the 
judge  that  the  jury  must  be  satisfied  as  to  the  value  and  dam- 
age by  the  testimony  that  was  produced  before  it,  without 
reference  to  any  testimony  that  was  produced  before  the  com- 
missioners, or  influenced  by  the  commissioners'  report.  This 
instruction  we  think  was  clearly  correct.  The  case  was  tried 
de  novo  upon  the  appeal  before  the  court  and  a  jury,  and  the 
only  testimony  to  be  considered  was  that  which  was  received 
on  that  trial,  supplemented  by  the  knowledge  obtained  by  the 
jury  from  a  personal  view  of  the  premises. 

Upon  a  consideration  of  the  whole  record,  we  think,  there 
was  no  error  committed  upon  the  trial  of  the  case  before  the. 
jury,  and  the  judgment  of  the  Circuit  Court  of  Appeals  for 
the  Third  Circuit,  affirming  the  judgment  of  the  District 
Court  for  the  District  of  New  Jersey,  is,  therefore, 

Affirmed. 


VILLAGE  OF  ST.  JOHNSVILLE  v.  SMITH. 

New  York,  1906.     184  N.  Y.  341. 

Willard  Bartlett,  J.  This  is  a  proceeding  in  behalf  of 
an  incorporated  village  to  acquire  certain  lands  and  water 
rights  of  the  appellant  for  the  purpose  of  obtaining  for  the 
village  an  additional  supply  of  pure  and  wholesome  water. 
It  was  instituted  in  1896,  before  chapter  181  of  the  Laws  of 
1875,  entitled  "An  act  to  authorize  the  villages  of  the  State 
of  Now  York  to  furnish  pure  and  wholesome  water  to  the 
inhabitants  thereof/'  had  been  repealed  by  the  Village  Law 


VILLAGE   OF   ST.  JOHNSVILLE  v.  SMITH.  601 

(Chap.  414  of  the  Laws  of  1897,  taking  effect  July  1,  1897), 
and  hence  was  regulated  by  the  act  of  1875  and  the  amend- 
ments thereof  in  force  at  the  time,  and  by  the  provisions  of 
the  Condemnation  Law  (Code  Civ.  Proc.  chap.  XXIII).  An 
answer  to  the  petition  was  interposed  by  the  appellant  and 
others;  the  issues  were  referred  to  a  referee,  who  determined 
them  in  favor  of  the  petitioner;  commissioners  were  appointed 
who  awarded  $500  to  the  appellant  for  the  property  and 
rights  belonging  to  him  which  were  sought  to  be  acquired, 
and  the  report  of  the  commissioners  was  confirmed  at  Special 
Term  by  a  final  order,  which  has  been  unanimously  affirmed 
by  the  Appellate  Division. 

Upon  this  appeal  a  number  of  objections  are  made  to  the 
validity  and  regularity  of  the  proceeding  which  we  do  not 
deem  it  necessary  to  discuss  further  than  to  say  that  we  re- 
gard them  as  untenable,  and  we  find  no  error  in  the  record 
justifying  the  interference  of  this  court,  save  in  respect  to 
the  action  of  the  commissioners  in  estimating  the  value  of  the 
property  taken. 

The  original  petition  was  verified  on  May  26,  1896,  and  it 
is  stipulated  by  the  parties  that  it  was  served  on  the  appel- 
lant on  or  before  June  1,  1896.  It  is  apparent,  therefore, 
that  the  proceeding  cannot  be  regarded  as  having  been  insti- 
tuted before  May  26,  1896.  As  early  as  September  25,  1895, 
however,  the  authorities  of  the  village  of  St.  Johnsville  had 
commenced  to  construct  an  intake  basin  and  lay  pipes  on 
the  lands  of  the  appellant,  which  it  desired  to  condemn,  and 
the  work  was  so  far  completed  that  water  was  turned  into  the 
pipes  and  taken  for  the  use  of  the  village  on  October  25,  1895, 
while  the  superstructure  over  the  basin  and  other  work  by 
the  village  on  such  lands  was  completed  by  the  16th  of  Janu- 
ary, 1896. 

Neither  the  reservoir  nor  the  piping  nor  any  portion  of  the 
structures  thus  placed  upon  the  premises  of  the  appellant 
were  taken  into  consideration  by  the  commissioners  in  esti- 
mating the  value  of  the  land  upon  which  they  had  been 
located.      The  commissioners  make  this  perfectly  clear  in 


602  CASES  ON  DAMAGES. 

their  report  where  they  expressly  declare  that  in  fixing  the 
appellant's  compensation  at  $500  they  do  not  make  any 
allowance  "  for  the  value  of  the  pipe,  the  intake  basin,  or 
the  superstructure  covering  the  same,  nor  for  any  of  the 
work  or  construction  placed  upon  the  appraised  premises  by 
the  plaintiff,  or  for  an}-  enhanced  value  of  the  premises  by 
reason  of  such  construction  having  been  placed  thereon  b}-  the 
plaintiff." 

It  is  conceded  that  the  appellant  forbade  the  entr}'  upon 
his  land  ;  and  the  engineer  who  supervised  the  work  for  the 
village  testified  that  he  understood  that  whatever  was  done 
was  done  in  opposition  to  the  will  of  Mr.  Smith.  There  is  a 
statement  in  the  brief  for  the  respondent  to  the  effect  that 
"apparently  he  subsequently  consented,"  but  we  can  find  no 
sufficient  basis  in  the  evidence  for  any  such  inference.  In 
disposing  of  the  appeal  we  think  it  must  be  treated  as  an 
established  fact  that  the  invasion  of  his  property  b}T  the  vil- 
lage was  not  only  without  the  consent  of  the  appellant,  but 
against  his  express  command  and  remonstrance. 

Under  these  circumstances  we  think  that  the  landowner 
was  entitled  to  have  the  value  of  the  structures  thus  placed 
upon  his  premises  by  the  village,  without  authorit}-  of  law, 
before  the  institution  of  the  condemnation  proceedings,  con- 
sidered by  the  commissioners  of  appraisal  in  arriving  at  their 
determination  as  to  the  compensation  which  ought  justly  to 
be  made  to  him  by  reason  of  the  taking  of  his  lands. 

The  invasion  of  the  appellant's  property  was  clearly  tor- 
tious, the  village  and  its  agents  being  mere  trespassers. 
Matter  of  St.  Lawrence  &  Adirondack  R.  R.  Co.,  133  N.  Y. 
270.  It  is  true  that  a  survey  and  map,  as  provided  by  sec- 
tion 5  of  the  statute  (Chap.  181,  Laws  of  1875,  as  amended 
by  chap.  211  of  the  Laws  of  1885)  had  been  made  and  filed 
prior  to  this  entry,  showing  the  appellant's  land  and  water 
rights  which  the  board  of  water  commissioners  of  the  village 
intended  to  acquire  ;  but  the  mere  making  and  filing  of  this 
map  did  not  empower  the  village  authorities  to  take  posses- 
sion of  the  premises  described  therein  and  erect  a  water  plant 


VILLAGE  OF   ST.  JOHNSVILLE   v.   SMITH.  603 

thereon.  It  was  only  after  a  determination  by  commissioners 
of  appraisal  fixing  the  compensation  which  ought  justly  to  be 
made  to  the  landowner,  and  after  a  confirmation  of  their 
report  by  the  Supreme  Court,  and  upon  payment  or  deposit 
of  the  sum  fixed  as  compensation  that  the  village  became 
entitled  to  take  and  hold  the  property.  Subd.  8  of  section  6 
of  chap.  181  of  the  Laws  of  1875,  as  amended  by  chap.  211 
of  the  Laws  of  1885.  The  only  entry  which  the  statute 
authorized  to  be  made  before  condemnation  was  "  for  the 
purpose  of  making  surveys  and  to  agree  with  the  owner"  as 
to  the  amount  of  compensation.  Chap.  181,  Laws  of  1875, 
§  4,  as  amended  by  chap.  211,  Laws  of  1885,  as  amended  by 
chap.  383,  Laws  of  1895.  The  entry  and  occupation  here 
were  obviously  of  a  very  different  character,  the  appropria- 
tion of  the  premises  to  the  uses  of  the  village  being  as  ab- 
solute and  permanent  as  it  could  ever  become  upon  the 
successful  completion  of  condemnation  proceedings,  before 
any  petition  in  such  proceedings  had  even  been  verified. 

The  question  which  arises  here  has  twice  been  considered 
by  the  Supreme  Court  at  General  Term,  —  first  in  Matter  of 
Long  Island  R.  R.  Co.,  6  Thomp.  &  Cook,  298,  in  the  second 
department,  and  later  in  the  fourth  department  in  Matter  of 
N.  Y.,  West  Shore  &  Buffalo  Ry.  Co.,  37  Hun,  317. 

In  the  first  of  these  cases  the  railroad  company,  before 
instituting  proceedings  to  condemn,  laid  its  tracks  upon  the 
appellant's  land.  The  appellant  sought  to  prove  before  the 
commissioners  that  the  entry  was  made  without  the  owner's 
consent,  and  claimed  compensation  for  the  increased  value 
created  by  the  improvements  which  the  railroad  had  made 
by  laying  its  tracks  upon  the  land.  The  court  held  that  the 
commissioners  erred  in  rejecting  the  evidence  offered  to  estab- 
lish the  entry  without  consent  and  the  value  of  the  improve- 
ments made  by  the  trespasser,  saying:  "  We  are  of  opinion 
that  the  railroad  company,  if  they  entered  without  consent, 
were  trespassers  as  to  the  then  owner,  .  .  .  and  that  any 
fixtures  they  placed  on  the  land,  while  their  occupation  was 
that  of  trespassers,  belong  to  the  owner  who  is  such  at  the 


604  CASES  ON  DAMAGES. 

time  of  making  the  valuation."  As  to  the  method  in  which 
the  damages  were  to  be  ascertained,  the  court  added  :  "  In 
making  such  proof  we  do  not  understand  that  the  value  of 
each  tie  and  rail  is  to  be  determined ;  the  railway  track  com- 
posed of  rails  and  ties  is  a  fixture  of  the  land,  and  its  value 
as  a  fixture  enhancing  the  value  of  the  land  for  the  beneficial 
enjoyment  thereof  is  the  measure  of  compensation." 

In  the  second  case  cited  the  gist  of  the  decision  is  con- 
tained in  the  following  extract  from  the  opinion  of  Mr.  Jus- 
tice Boardman  :  "  Any  structure  wrongfully  placed  upon  the 
lands  by  the  railwaj'  company  became  by  that  act  a  part  of 
the  land  and  entered  into  its  value.  The  case  tends  to  show 
that  the  railway  company  entered  upon  the  lands  in  question 
without  right  or  authority  from  the  owners  and  built  the  road 
in  part  thereon.  The  property  so  put  upon  the  land  added 
to  its  value  and  was  property  included  in  the  appraisal  as 
property  of  the  landowners  to  be  taken  by  the  railroad 
company." 

We  are  of  opinion  that  these  cases  were  correctly  decided, 
and  that  the  rule  of  law  therein  applied  entitles  the  appellant 
in  the  case  at  bar  to  a  new  appraisal.  This  rule  has  been 
recognized  and  enforced  by  the  courts  of  other  States.  The 
case  of  United  States  v.  Land  in  Monterey  County,  47  Cal. 
515,  was  a  proceeding  commenced  by  the  federal  government 
in  1870  to  acquire  lands  in  California  for  lighthouse  purposes. 
In  1854  the  United  States,  by  its  agents,  entered  upon  the 
lands  sought  to  be  condemned  and  erected  a  stone  building 
for  lighthouse  purposes  thereon.  This  was  done  against  the 
will  of  the  owners.  At  the  trial  they  offered  evidence  in 
regard  to  the  value  of  the  structure,  claiming  that  inasmuch  as 
it  had  been  tortiously  affixed  to  the  freehold  its  value  should 
be  considered  in  determining  the  compensation  to  which  they 
were  entitled.  The  Supreme  Court  of  California  held  that 
this  evidence  was  erroneously  excluded.  "  There  can  be  no 
doubt,"  said  Wallace,  C.  J.,  "that  upon  the  general  prin- 
ciples of  law  the  defendants,  as  being  owners  of  the  fee,  are 
also  owners  of  the  improvements  and  fixtures  actually  an- 


VILLAGE  OF   ST.  JOHNSVILLE  v.   SMITH.  605 

nexed  to  the  soil  and  these  become  a  part  of  it.  If  one  erect 
buildings  upon  the  laud  of  another  voluntarily,  and  without 
any  contract,  he  may  not  remove  them.  This  is  common 
learning.  The  law  did  not  authorize  the  United  States  to 
take  possession  of  these  lands  manu  forti,  and  their  agents 
in  entering  upon  them  and  ejecting  the  defendants  were  mere 
tort  feasors." 

In  Graham  v.  Connersville,  &c.  E.  R.  Co.,  36  Ind.  463,  it 
was  held  that  where  a  railroad  company,  without  having 
acquired  the  right  so  to  do.  had  in  advance  of  condemnation 
proceedings  entered  upon  the  land  subsequently  sought  to  be 
condemned  and  erected  a  depot  and  hotel  thereon,  these 
buildings  became  the  property  of  the  landowner,  and  should 
have  been  included  in  estimating  the  value  of  the  property 
when  the  damages  were  assessed.  "If  this  rule  seems  to 
savor  of  hardship,"  said  the  court,  "the  company  has  no  one 
tc  blame  but  itself  for  not  having  avoided  its  application." 

The  doctrine  thus  asserted  is  stated  by  Mills  in  his  well- 
known  treatise  on  the  Law  of  Eminent  Domain  as  follows: 
"A  trespasser  is  not  entitled  to  any  benefit  for  improvements 
made  on  the  land  during  the  time  of  his  occupation.  Houses 
erected  on  the  land  of  another  belong  to  the  owner,  without 
compensation  to  the  party  erecting,  except  where  legislatures 
have  granted  relief  to  those  who  have  made  improvements  on 
land  in  good  faith,  believing  they  had  good  title.  The  rule 
follows  that  all  erections  belong  to  the  owners,  and  cannot  be 
removed  by  the  parties  placing  them  there  ;  and  hence,  on  a 
subsequent  condemnation,  the  value  of  the  land,  with  the 
structures  also,  must  be  paid."  Mills  on  Eminent  Domain, 
2d  ed.,  §  148.  Lewis,  however,  another  text  writer  of  abil- 
ity, declares  that  the  cases  which  we  have  cited  "proceed 
upon  a  strict  and  technical  rule  of  the  common  law,  that 
structures  placed  upon  land  by  a  trespasser  become  a  part  of 
the  realty  and  cannot  be  removed,"  and  he  refers  to  a  con- 
siderable number  of  decisions  in  other  jurisdictions  to  the 
effect  that  "the  owner  in  a  proceeding  to  ascertain  the  just 
compensation  is  not  entitled  to  the  value  of  the  works  placed 


606  CASES  ON  DAMAGES. 

upon  the  property,  though  without  right,  for  the  purpose  of 
adapting  the  property  to  the  public  use  intended."  2  Lewis 
on  Eminent  Domain,  2d  ed.,  p.  1144.  The  scope  and  effect 
of  the  group  of  cases  sustaining  this  proposition  is  accurately 
stated  by  Mr.  Carman  F.  Randolph,  of  New  Jersey,  in  a  still 
more  recent  work  on  this  branch  of  the  law,  where  he  says : 
"  The  broad  ground  is  taken  that  while  an  irregular  entry  for 
public  use  is  a  technical  trespass,  yet  the  title  to  improve- 
ments should  not  vest  in  the  owner  because  the  possession 
can  be  legitimated  b}'  lawful  proceedings,  and  for  the  broader 
reason  that  the  improvements  themselves  are  not  intended  to 
be  adjuncts  to  the  freehold,  but  are  made  simply  to  subserve 
a  use  in  which  the  landowner  has  no  interest."  Randolph  on 
Eminent  Domain,  p.  222.  Justice  v.  Nesquehoning  Valley 
R.  R.  Co.,  87  Pa.  St.  28,  is  typical  of  the  class  of  cases  which 
give  countenance  to  this  view. 

We  are  quite  clear  that  it  should  not  receive  the  sanction 
of  the  courts  of  this  State.  So  far  as  actual  intent  is  con- 
cerned, a  personal  trespasser  who  annexes  a  structure  to 
another's  freehold  does  not  mean  that  it  shall  become  the 
property  of  the  landowner  any  more  than  does  a  trespassing 
railwa}'  company  or  municipalit}-  which  does  the  same  thing 
in  contemplation  of  acquiring  the  land  at  some  future  time  by 
the  exercise  of  the  power  of  eminent  domain.  The  law  affixes 
the  consequences  to  the  act,  not  the  intent.  It  says  to  those 
who  invoke  the  power  of  eminent  domain  as  well  as  to  all 
others  :  If  you  invade  land  without  legal  right  and  place 
structures  of  a  permanent  character  thereon,  those  structures 
belong  to  the  landowner.  There  is  no  more  harshness  in 
applying  the  rule  to  one  class  of  trespassers  than  to  the 
other.  In  both  cases  its  application  tends  to  prevent  the 
perpetration  of  a  wrong.  Its  operation  in  this  State  has 
been,  and  will  undoubtedly  continue  to  be,  most  salutary  in 
constraining  those  municipal  and  other  corporations  which 
the  State  has  authorized  to  exercise  the  power  of  eminent 
domain  not  to  assume  the  possession  of  lands  in  advance  of 
any  right  so  to  do,  and  thus  practically  nullify,  during  the 


J 


VILLAGE   OF  ST.  JOHNSVILLE   v.   SMITH.  607 

period  of  unlawful  possession,  that  provision  of  the  constitu- 
tion which  guarantees  the  citizen  against  being  deprived  of 
his  property  for  public  use  without  just  compensation. 

The  difference  is  obvious  between  a  clear  case  of  trespass 
like  that  before  us  and  a  case  in  which  after  a  lawful  entry, 
followed  by  improvements  upon  the  land,  the  occupant  finds 
it  necessary  to  institute  condemnation  proceedings  b}-  reason 
of  a  doubt  as  to  the  title  or  for  the  extinguishment  of  liens 
upon  the  property.  "It  may  be  assumed  as  the  law,"  said 
Mr.  Justice  Cullen  in  Philadelphia,  R.  &  N.  E.  R.  E.  Co.  v. 
Bowman,  23  App.  Div.  170,  "that  where  a  railroad  company 
lawfully  enters  into  possession  of  premises  and  thereafter 
institutes  condemnation  proceedings  to  cure  a  defective  title, 
or  extinguish  the  lien  of  a  mortgage  or  other  incumbrances, 
the  measure  of  compensation  is  not  enhanced  by  the  improve- 
ments placed  by  the  railroad  company  on  the  land,"  although 
he  adds  that  even  this  proposition  is  not  authoritatively  set- 
tled in  this  State.  But  further  on  in  the  opinion  the  rule  in 
this  State,  as  in  California,  is  declared  to  be  that  the  improve- 
ments go  to  the  landowner,  where  a  railroad  company  has  en- 
tered without  his  permission,  as  a  mere  trespasser  ;  and  the 
landowner  is  entitled  to  compensation  for  such  improvements 
in  a  proceeding  to  condemn. 

There  is  nothing  in  Matter  of  St.  Lawrence  &  Adirondack 
R.  R.  Co.,  66  Hun,  306,  cited  in  the  respondent's  brief,  which 
affects  the  question  under  consideration.  Section  3379  of  the 
Code  of  Civil  Procedure  (which  is  a  section  in  the  Condemna- 
tion law)  provides  that  at  any  stage  of  a  proceeding  to  con- 
demn, the  court  may  authorize  the  plaintiff,  if  in  possession 
of  the  property  sought  to  be  condemned,  to  continue  in  pos- 
session upon  giving  such  security  or  depositing  such  sum  of 
money  as  the  court  may  direct.  The  General  Term  in  the 
case  cited  recognized  the  construction  put  upon  that  section 
by  this  court  in  Matter  of  St.  Lawrence  &  Adirondack  R.  R. 
Co.,  133  N.  Y.  270,  where  it  was  held  not  to  apply  to  a  rail- 
road company  which  had  entered  upon  land  under  no  claim 
or  pretense  of  right,  in  defiance  of  the  will  of  the  owner, 


608  CASES  ON  DAMAGES. 

under  no  mistake  or  misapprehension  and  without  color  of 
authority  ;  and  the  General  Term  then  proceeded  to  hold  that 
possession  was  properly  allowed  to  continue  upon  giving 
security  under  section  3379  where  it  appeared  to  the  Special 
Term  that  the  plaintiff  had  not  acquired  such  possession  by  a 
trespass  or  without  color  of  claim. 

In  holding,  as  we  do,  that  the  appellant  is  entitled  to  have 
the  improvements  made  upon  his  land  by  the  respondent 
while  a  trespasser  taken  into  consideration  in  ascertaining 
his  compensation,  it  must  be  distinctly  understood  that  the 
measure  of  such  compensation  is  neither  the  cost  of  the  im- 
provements nor  their  value  or  the  value  of  their  use  to  the 
village.  The  true  inquiry  is  how  much  do  the  improvements 
placed  upon  the  property  enhance  the  value  of  the  appellant's 
land. 

The  orders  of  the  Appellate  Division  and  the  Special  Term 
should  be  reversed,  with  directions  to  appoint  new  commis- 
sioners of  appraisal  to  determine  the  appellant's  compensa- 
tion in  accordance  with  this  opinion,  with  costs  in  all  courts 
to  appellant. 

Cullen,  C.  J.,  Gray,  Edward  T.  Bartlett,  Haight,  and 
Vann,  JJ.,  concur;  Chase,  J.,  not  sitting. 

Ordered  accordingly. 


PEORIA,  BLOOMINGTON  AND  CHAMPAIGN  TRAC- 
TION COMPANY  v.  VANCE. 

Illinois,  1907.     225  111.  270. 

Scott,  C.  J.  Appellant,  Peoria,  Bloomington  and  Cham- 
paign Traction  Company,  is  constructing  an  interurban  elec- 
tric railroad  from  Bloomington  to  Peoria,  in  this  Stato,  which 
passes  through  the  village  of  Danvers.  On  June  9,  190G,  it 
instituted  proceedings  in  the  county  court  of  McLean  county 
to  condemn  a  strip  of  land  off  the  south  side  of  appellees' 
farm  for  its  right  of  way.  This  farm  is  between  the  village 
of  Danvers  and  the  city  of  Bloomington,  being  about  one 


PEORIA  AND   CHAMPAIGN  TRACTION  CO.  v.  VANCE.    609 

mile  from  the  former  and  nine  miles  from  the  latter.  Appel- 
lees filed  a  cross-petition  praying  that  damages  occasioned  to 
the  balance  of  the  farm  by  reason  of  the  taking  of  said  strip 
and  the  construction  and  operation  of  the  railroad  thereon  be 
ascertained  and  awarded  to  them.  The  jury,  after  hearing 
the  evidence,  and  viewing  the  premises,  returned  a  verdict, 
awarding  to  appellees  &1600  as  compensation  for  land  taken 
and  $1900  as  damages  to  land  not  taken.  After  overruling 
appellant's  motion  for  a  new  trial  the  court  entered  judgment 
in  accordance  with  the  verdict,  and  appellant  appeals. 

Appellees'  farm  consists  of  172  acres.  The  land  sought  to 
be  taken  is  a  strip,  containing  4.43  acres,  off  the  south  side 
of  the  farm  and  adjoining  the  public  highway  between  Bloom- 
ington  and  Danvers.  The  right  of  way  enters  the  farm  at 
the  southeast  corner  and  proceeds  west,  taking  a  strip  eighty- 
two  and  one-half  feet  wide  until  it  reaches  the  barn.  It  is 
then  narrowed  to  sixty  feet  in  order  to  avoid  taking  the 
house  and  barn,  which  are  only  from  three  to  five  feet  north 
of  the  north  line  of  this  sixty-foot  strip.  After  passing  the 
buildings  the  right  of  way  is  widened  to  eighty-two  and  one- 
half  feet,  and  so  continues  until  it  reaches  the  west  line  of 
the  farm.  The  portion  of  the  172  acres  not  taken  will  all  lie 
north  of  the  right  of  way  and  will  be  separated  by  it  from  the 
highway  on  the  south.  In  constructing  the  railroad  it  will  be 
necessary  to  make  a  cut  in  front  of  the  house  and  barn.  The 
deepest  portion  of  the  cut  will  be  in  front  of  the  house,  where 
the  top  of  the  rail  will  be  two  feet  below  the  present  surface 
of  the  ground. 

It  was  practically  conceded  by  appellant,  on  the  trial,  that 
the  buildings  would  have  to  be  moved  to  another  part  of  the 
farm  and  that  the  portion  of  the  farm  not  taken  would  be 
damaged  in  other  respects,  but  it  was  contended  that  such 
damages  were  to  a  great  extent,  if  not  entirely,  offset  by  the 
benefits  which  the  land  would  receive  from  the  construction 
and  operation  of  the  railroad,  and  the  testimony  of  witnesses 
was  offered  to  sustain  that  contention.  Some  of  these  wit- 
nesses testified  that  the  benefits  would  equal  the  damages  and 


610  CASES  ON  DAMAGES. 

that  there  would  be  no  depreciation  in  the  market  value  of 
the  land  not  taken,  while  others  of  appellant's  witnesses 
were  of  the  opinion  that  the  damages  would  exceed  the  bene- 
fits, but  not  in  as  large  an  amount  as  the  jury  awarded  for 
damages  to  the  land  not  taken.  Such  amount  so  awarded 
for  damages  last  mentioned,  however,  was  within  the  range 
of  the  testimony  of  the  witnesses  for  the  appellees. 

Appellees  offered,  and  the  court  gave  to  the  jury,  the  fol- 
lowing instruction,  numbered  11. 

"  The  court  instructs  the  jury  that  you  should  not  set  off 
against  damages  to  the  land  not  taken  any  general  benefits 
which  you  might  believe,  from  the  evidence,  that  this  farm 
would  receive  on  account  of  the  location  of  this  railroad  near 
it.  By  general  benefits  are  meant  those  which  the  land  would 
share  in  common  with  others  in  the  same  vicinity,  and  all  evi- 
dence in  this  case  before  the  jury  relating  to  general  benefits, 
such  as  that  of  making  a  better  market  or  affording  conven- 
ience for  trade  and  travel,  should  not  be  considered  by  the 
jury.  Only  such  benefits  as  are  special  to  this  farm  and  not 
common  to  the  other  farms  in  the  vicinity  can  be  set  off 
against  damages  to  the  land  not  taken,  and  if  there  are  no 
special  benefits  to  this  farm  by  reason  of  the  location  of  this 
railroad  near  it,  —  that  is,  no  benefits  which  would  not  appre- 
ciate the  fair  cash  market  value  of  this  particular  farm, — 
then  the  jury,  making  up  their  verdict,  should  consider  no 
benefits  whatever  to  the  land  not  taken." 

Appellant  contends  that  this  instruction  announced  an  incor- 
rect statement  of  the  law,  and  that  the  court,  in  giving  it, 
committed  reversible  error.  We  agree  with  this  contention. 
Since  the  adoption  of  the  constitution  of  1870  it  has  been  uni- 
formly held  by  this  court,  in  such  cases  as  this,  that  the  meas- 
ure of  damages  to  land  not  taken  is  "  the  difference  in  the 
fair  cash  market  value  of  the  land  before  and  after  the  con- 
struction of  the  railroad,"  or  "the  amount,  if  any,  which 
lands  not  taken  will  be  depreciated  in  their  fair  cash  market 
value  by  the  construction  and  operation  of  the  proposed  road." 
Chicago  and  Pacific  Railroad  Co.  v.  Francis,  70  111.  238 ; 


PEORIA  AND  CHAMPAIGN   TRACTION  CO.  v.  VANCE.    611 

Page  v.  Chicago,  Milwaukee  and  St.  Paul  Railway  Co.,  70 
id.  324 ;  Eberhart  v.  Chicago,  Milwaukee  and  St.  Paul  Rail- 
way Co.,  70  id.  347 ;  Chicago,  Burlington  and  Northern 
Railroad  Co.  v.  Bowman,  122  id.  595;  Metropolitan  West 
Side  Elevated  Railway  Co.  v.  Stickney,  150  id.  362 ;  All- 
mon  v.  Chicago,  Paducah  and  Memphis  Railroad  Co.,  155 
id.  17;  Illinois  Central  Railroad  Co.  v.  Turner,  194  id.  575; 
Chicago  and  Milwaukee  Electric  Railroad  Co.  v.  Mawman, 
206  id.  182  ;  Illinois,  Iowa  and  Minnesota  Railway  Co.  v.  Eas- 
terbrook,  211  id.  624;  Hartshorn  v.  Illinois  Valley  Railway 
Co.,  216  id.  392  ;  Chicago  Southern  Railway  Co.  v.  Nolin, 
221  111.  367  ;  Chicago,  Bloomington  and  Decatur  Railway 
Co.  v.  Kelly,  221  id.  498. 

Under  the  rule  adopted  in  this  State  for  determining 
whether,  or  in  what  amount,  property  not  taken  will  be  dam- 
aged by  the  construction  and  operation  of  a  railroad,  any 
benefits  which  are  not  conjectural  or  speculative,  and  which 
actually  enhance  the  market  value  of  such  property,  are  to 
be  considered  as  special  benefits  and  not  as  general  benefits 
within  the  meaning  of  the  rule  that  general  benefits  cannot 
be  considered  in  determining  whether,  or  in  what  amount, 
property  not  taken  will  be  damaged.  Special  benefits  do 
not  become  general  benefits  because  the  benefits  are  common 
to  other  property  in  the  vicinity.  The  fact  that  other  property 
in  the  vicinity  of  the  proposed  railroad  will  also  be  increased 
in  value  by  reason  of  the  construction  and  operation  thereof 
furnishes  no  excuse  for  excluding  the  consideration  of  special 
benefits  to  the  particular  property  in  determining  whether  it 
has  been  damaged,  and  if  it  has,  the  extent  of  the  deprecia- 
tion in  value.  Stickney  case,  supra;  Metropolitan  West 
Side  Elevated  Railroad  Co.  v.  White,  166  111.  375  ;  Fahue- 
stock  v.  City  of  Peoria,  171  id.  454. 

In  the  Stickney  case  it  was  said,  at  page  383  of  volume 
150  of  our  Reports:  "Thus,  the  situation  of  the  property, 
the  use  to  which  it  is  devoted  and  of  which  it  is  susceptible, 
the  character  and  extent  of  the  business  to  which  it  is  adap- 
ted, before  and  after  the  construction  of  the  public  work,  and 


612  CASES  ON  DAMAGES. 

indeed,  every  fact  and  circumstance  legitimately  tending  to 
show  a  depreciation  or  enhancement  of  the  value  of  the  prop- 
erty, are  proper  to  be  considered,  so  far  as  they  tend  to  show 
the  actual  value  of  the  land  without  and  with  the  proposed 
taking  for  the  public  use,  while,  on  the  other  hand,  a  con- 
sideration of  facts  or  circumstances  tending  to  show  those 
general  benefits  supposed  to  flow  to  the  community  at  large, 
or  to  the  public  generally,  from  the  construction  of  the  pro- 
posed railroad  or  other  public  work,  and  the  effect  of  which, 
in  determining  the  injury  or  benefit  to  the  particular  tract  of 
land,  cannot  be  other  than  conjectural  and  speculative,  is 
excluded." 

By  appellees'  eleventh  instruction,  which  is  abjove  set  out, 
the  court,  after  advising  the  jury  that  they  should  not  con- 
sider any  general  benefits  that  the  farm  would  receive  from 
the  location  of  the  railroad  near  it,  stated  that  "  by  general 
benefits  are  meant  those  which  the  land  would  share  in  com- 
mon with  others  in  the  same  vicinity,"  and  that  "only  such 
benefits  as  are  special  to  this  farm  and  not  common  to 
the  other  farms  in  the  vicinity  can  be  set  off  against  damages 
to  the  land  not  taken."  If  the  jury  believed,  as  they  well 
might  from  the  evidence,  that  appellees'  farm  would  be 
enhanced  in  value  by  reason  of  the  construction  and  ope- 
ration of  the  electric  railroad,  it  is  more  than  probable  that 
they  also  believed  that  other  farms  in  the  vicinity  would  also 
be  increased  in  value  from  the  same  cause.  The  prejudicial 
effect  of  the  instruction  is  therefore  apparent. 

It  is  unnecessary  to  consider  other  errors  assigned. 

For  the  error  in  giving  appellees'  eleventh  instruction  the 
judgment  will  be  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 


INDEX. 


INDEX. 


d.  means  damages. 


ACCESSION.     See  Severance  from  Realty.  page 

AGGRAVATION   AND   MITIGATION, 

circumstances  of,  shown  to  affect  d.  for  non-pecuniary 

injury     189,  386-403 

pecuniary  ability  of  the  parties  shown  in  .       386-387,  397-398 

bad  character  of  plaintiff 389-393,  39S-403 

ill-treatment  of  plaintiff's  wife 393-394 

provocation 394-396 

ANTICIPATORY   BREACH   OF   CONTRACT, 

whether  duty  to  avoid  loss  in  case  of 447,  481 

d.  in  case  of 481-484,  497,  502 

ATTACHMENT,  d.  for  wrongful 469-471 

AVOIDABLE   CONSEQUENCES, 

no  recovery  for 170-183 

if  they  naturally  result  from  plaintiff's  acts  .     .     .        183-185 

upon  breach  of  contract 523 

in  case  of  anticipatory  breach  of  contract      .     .     .       477,  481 
whether  earnings  elsewhere  during  period  of  contract  to 

be  deducted 171-174,177-180 

whether  one  must  commit  wrong  in  order  to  avoid  con- 
sequences      174 

whether  one  must  anticipate  wrong  in  order  to  avoid  its 

effect 180-181 

as   upon    receiving   notice  of   intention  to 

break  contract 185-1 87 

expense  of  attempt  to  avoid  consequences  recoverable  467-469 
what  steps  are  reasonable  in  avoiding  consequences     174-176, 

187-189 
effect  of  rule  of,  upon  recovery  of  highest  intermediate 
value 315-321 


610  INDEX. 

BAILEE.     See  Possessor.  Page 

BENEFIT, 

when  to  be  considered  in  reduction  of  d.  \     .     .     .       295-296 

in  eminent  domain  proceedings 608-612 

And  see  Severance  from  Realty. 

BREACH  of  contract  before  performance.     See  Anticipa- 
tory Breach. 

BUSINESS,  recovery  for  injury  to   .     .     .    218,  231-234,  263-265 

CARRIER, 

d.  against,  for  expulsion  of  passenger 356 

for  injury  to  passenger 352-356 

responsible  for  direct  loss,  however  unexpected       ...       73 
how  far  responsible  for  consequences  of  delay    92-95,  127-134 
for  consequences  of  wrongful  expul- 
sion of  passenger   ....       134-152 
CERTAINTY, 

amount  of  d.  must  be  proved  with  reasonable     67-69,  205-266 

to  what  degree  must  be  shown 216 

of  profits  of  contract 494,  559-563 

CHARACTER, 

of  plaintiff  may  be  shown  in  mitigation   .       389-393,  398-401 

not  proved  by  reputation  as  to  particular  acts   .     .       401-403 

CHARITABLE  AID,  whether  d.  reduced  because  of  .       298-300 

CLOTHES,  value  of  second-hand 428 

COAL,  d.  for  wrongfully  mining 329-337 

COMPOUND  INTEREST,  whether  allowed     .     .     .       462-463 

CONSEQUENTIAL   DAMAGES, 

when  recoverable  in  actions  of  tort 78-91 

in  actions  of  contract :  rule  in  Hadley 

v.  Baxendale 92-95 

contemplation  of  parties  and  notice  distinguished       .    95-102 
what  are,  in  contemplation  of  parties        .        95-102, 105-107, 

112-127,  141-143 
costs  incurred    in   another  suit,  when  contem- 
plated    .     .  ' 107-115 

what  notice  is  sufficient 102-105,  107-115 

notice  of  sub-contract 102-105,  107-115 

in  cases  of  injury  by  carriers,  see  Carrier  ;  by  telegraph 
companies,  see  Telegraph  Companies. 
See  Avoidable  Consequences  ;  Counsel  Fees 


INDEX.  617 

CONTRACT,  Page 

entire  breach  of,  before  time  for  complete  performance 

177-180,  277-279 

d.  for  anticipatory  breach  of 185-188,  482-489 

general  rule  of  d.  in  actions  for  breach  of  476,  479,  490-503 
performable  in  instalments,  d.  for  breach  of  476-478,  478-482 
where  duty  arises  to  avoid  loss  on  breach  of  ....  177 
d.  upon  breach  of,  before  time  for  performance  .  476-482 
d.  upon  breach  after  partial  performance       .     .     .        505-511 

profits  of,  recoverable 482-503 

profits  secured  by,  recoverable 219-221 

d.  recoverable  by  one  who  has  substantially  performed      511- 

512,  512  n. 

d.  recoverable  upon  rescission  of 513-523 

of  indemnity,  d.  for  breach  of 524,  526 

to  pay  the  debt  of  another,  d.  for  breach  of  .  .  523-528 
time  when  d.  for  breach  of,  should  be  estimated    .      478,  480, 

491-505 

to  convey  land,  d.  for  breach  of 538-552 

of  warranty  in  sales  of  chattels 552-559 

uncertainty  of  (/.  on  breach  of 559-563 

recovery  of  preliminary  expenses  where  profits  are  un- 
certain            561-563 

See  Quasi-Contract  ;  Covenant. 

CORPORATION,  value  of  stock  in 410-420 

COSTS  of  eviction  suit,  whether  recoverable  in  action  on  the 

warranty 534 

See  Counsel  Fees. 
COUNSEL  FEES, 

whether  recoverable 189-195 

recoverable  if  lost  through  breach  of  contract    .     .       195,196 

in  action  on  warranty 196-199 

when  paid  by  plaintiff  because  of  defendant's  tort         200-204 

COUPONS,  interest  on  overdue 464-465 

COURT,  function  of,  in  estimating  d 1-14 

COVENANT, 

of  warranty,  d.  for  breach  of 528-529,  531 

of  seisin,  d.  for  breach  of 529,  529-5:57 

CREDIT,  d.  for  injury  to 464-466 

CROP,  d.  for  loss  of 225-228,251-256 

CURE,  expense  of 467-469 

DAMAGES,  measure  of,  is  a  question  of  law       ....      12-14 

See  the  various  titles. 


618  INDEX. 

Page 

DEATH,  d.  in  an  action  for 564-579 

DECEIT.     See  Fraud. 

DEFAMATION,  d.  for  suffering  in  action  of       367-368,  401-403 

DIRECT   LOSS, 

d.  for,  recoverable  in  contract 73 

as  for  loss  of  valuable  package  by  carrier   .       73 

d.  for,  recoverable  in  tort        74-77 

DISCOMFORT,  d.  for 357-358 

DISEASE,  pre-existing,  d.  for  injury  which  increases       .      75-77 
DISHONOR  OF   FAMILY,  d.  for 387 

EMINENT   DOMAIN, 

interest  in  cases  of  taking  by 457,  458 

d.  upon  taking  by 580-612 

ENTIRE   DAMAGES, 

must  be  recovered  for  a  single  cause  of  action   .    220,  267-269 
what  is  entire  cause  of  action  :  loss  of  support  of  land   269-272 

permanent  injury  to  land        272-276 

breach  of  contract  to  support  an  individual        .     .        277-278 
nuisance  to  land 280-286 

EXCESSIVE   VERDICT.     See  Verdict,  Excessive. 

EXEMPLARY   DAMAGES, 

whether  allowed 14-26,  190,  387,  471 

in  what  cases  allowed 15,  18,  31,  36,  192 

against  corporation  for  act  of  servant       .     .     .     17-20,  30-36 

against  master  for  act  of  servant 26-29 

legal  expenses  whether  included  in 190  ,  193 

EXPENSE, 

of  following  property 467 

of  cure 467-469 

of  preparations  to  perform  contract 561-563 

FALSE   REPRESENTATIONS.     See  Fraud. 

FINDER  of  property,  d.  recoverable  by 300-301 

FOLLOWING   PROPERTY,  expense  of 467 

FRAUD, 

d.  for  obtaining  property  by 471-474  n. 

d.   whether  the  same  as  in  action  for  breach  of  war- 
ranty        471-474 

FURNITURE,  value  of  second-hand 426-427 

FUTURE  LOSS,  d.  for.     See  Entire  Damages. 


INDEX.  619 

HIGHER  INTERMEDIATE  VALUE,  Page 

between  loss  and  trial,  whether  recoverable  .     .     .       313-329 

in  conversion 315-321,  323-329 

in  action  for  breach  of  contract  to  keep    ....       313-315 

to  sell 322 

effect  of  rule  of   avoidable   consequences   on    right  to 

reco^r 315-321 

where  owner  follows  property  or  proceeds 324 

ILLEGAL  PROPERTY,  value  of 380-381 

INCONVENIENCE,  d.  for 357-358 

INDEMNITY,  d.  for  breach  of  contract  of    ...     .       524,  526 

INDIGNITY,  d.  for 356,  394^395 

INSTRUCTION  on  d.  when  court  to  give 13-14 

INSULT,  d.  for 394-395 

INSURANCE,  payment  of,  not  to  reduce  d 296-298 

INTEREST, 

measures  d.  for  loss  of  use  of  money 206-208 

d.  for  non-payment  of  money  when  due  ....  436-441 
payable  from  time  money  should  have  been  paid  .  .  .  440 
for  non-delivery  of  property  of  value  easily  determined    441- 

445 

on  unliquidated  account 445-447 

448-451 
452-457 
.  457,  458 
459,  459-461 
459,  461 
461-4H2 


in  case  of  destruction  of  property  .... 
not  allowed  in  case  of  personal  injury  .  . 
in  cases  of  taking  by  eminent  domain  .  . 
after  maturity  of  obligation,  rate  of  .  .  . 
upon  obligation,  by  virtue  of  what  recovered 
where  debtor  is  served  with  trustee  process  . 
not  given  as  damages  where  payment  prevented  by  law       462 

compound 462-463 

as  damages  for  non-payment  of  interest  when  due      462-463, 

464-468 

on  overdue  coupons 464-468 

on  breach  of  covenant  of  warranty  or  seisin       ....     533 

JURY,  function  of,  in  estimating  d 1-15,  69-72 

LAND, 

d.  for  loss  of  support  to 269-272 

d.  for  permanent  injury  to 272-276 

d.  for  nuisance  to 280-286 

d.  recoverable  by  mortgagee  of 311-313 


620  INDEX. 

LAND  —  continued.  Page 

d.  for  breach  of  covenant  of  warranty  or  seisin  of       528-537 

d.  for  breach  of  contract  to  convey 538-552 

d.  for  severing   chattel  from.      See   Severance   from 
Realty. 

LAW,  measure  of  d.  a  question  of 12-14 

LIBEL.     See  Defamation. 

LIQUIDATED  DAMAGES, 

whether  or  not  allowed 37-42,  43-63 

as  distinguished  from  penalty     ...        38,  47,  50-52,  55-63 
from  alternative  contract  to  pay      42-43,  52- 

54,  58-61 

MAIHEM,  verdict  reduced  or  increased  in  case  of,  by  old 

practice 5-6 

MEDICAL   EXPENSES, 

recoverable  in  action  for  personal  injury 190 

whether  recoverable  if  gratuitously  rendered     .        298-299  n. 

MENTAL   SUFFERING, 

d.  for 358-386 

in  actions  for  personal  injury 360-364,  395 

for  injury  to  property       .     .     .       358-359,  365-366 
for  breach  of  contract      .     .     .      366,  372,  384-386 

for  defamation 367-368,  401-403 

against  telegraph  company 368-382 

for  alienating  husband's  affections     ....     205 

MIND,  d.  for  injury  to 361-364 

MITIGATION.     See  Aggravation. 

MONEY,  interest  measures  d.  for  loss  of  use  of  .     .     .  206-208 

MORTGAGEE  of  land,  d.  recoverable  by       ....  311-313 

NATURAL  AND   PROXIMATE  loss,  what  is      .     .       123-127 
See  Consequential  Damages. 

NOMINAL   DAMAGES, 

given  for  breach  of  right  where  no  actual  d.  are  proved        64, 

65  n. 

where  insufficient  evidence  of  d.  offered 67-69 

failure  to  give,  when  not  error 66 

NURSING,  expense  of,  whether  recoverable  if  gratuitously 

rendered 298-299  n. 


INDEX.  621 

PAIN,  Page 

d.  for 352-356 

compensated  in  action  for  personal  injury 180 

measure  of  d.  for,  rests  in  judgment  of  jury      ....       69 
PASSENGER,  d.  for  injury  to.     See  Carrikr. 
PAYMENT  of  debt,  d.  for  breach  of  contract  for    .     .        523-528 

PECUNIARY  d.  proof  of,  must  be  offered 69 

PERSONAL  INJURY, 

d.  for 74,  75-77,  189-190 

recovery  for  pain  in  case  of 352-356 

for  insult  and  indignity 391-395 

for  mental  suffering 360,  395 

for  injury  to  mind  by 361,  364 

interest  not  allowed  in  case  of 452-457 

PLEDGOR  of  personal  property,  recovery  from  pledgee  by  304-309 

PORTRAIT,  value  of 428-429 

POSSESSOR  of  personal  property,  d.  recoverable  by    .       300-304 
PRACTICE, 

as  to  proof  of  pecuniary  d 69 

as  to  diminishing  or  increasing  verdict  .  .  .  1-6,  457,  578 
as  to  setting  aside  verdict  for  error  in  assessing  d.      .     .  6-13 

in  old  law  as  to  view  of  wound  by  court 5-6 

as  to  setting  aside  a  second  verdict 577 

PROFITS, 

of  money,  interest  measures 206-208 

expected  from  use  of  property  not  usually  recoverable        208- 

215,  263-265 
of  established  business  may  sometimes  be  recovered    215-219) 

222-225 
not  as  d.  for  loss  of  time       228-233 

of  new  business  too  uncertain 224 

secured  by  contract  must  be  given  on  breach  .  .  219-222 
expected  from  crop,  whether  allowable  .  225-228,  254-256 
of  contemplated  speculation  in  stocks,  too  uncertain  256-262 
refused,  if  natural  and  proximate  consequence,  because 

uncertain 228-262 

of  a  contract  recoverable 491-503 

risk  of  loss  to  be  considered  in  estimating 499 

PROOF  of  d.  must  always  be  presented  in  case  of  pecuniary 

loss 205-206,  see  300-301 


622  INDEX. 

PROPERTY,  PERSONAL,  Page 

d.  for  conversion  of,  how  affected  by  return       .     .        287-294 

d.  for  injury  to 287 

d.  for  total  destruction  of 469 

d.  recoverable  by  owner  of  limited  interest  in  .  .  300-311 
by  pledgor  against  pledgee  .  .  .  304-309 
by  owner  against  bailee      .     .     .        309-311  n. 

expense  of  following 467 

d.  for  breach  of  contract  for  sale  of.     See  Sale. 
loss  of  use  of.     See  Use. 

PROXIMATE  LOSS 123-127 

See  Consequential  Damages. 

QUASI-CONTRACT, 

for  work  done  at  request,  amount  recoverable    ....     512 
for  work  upon  rescission  of  contract 513-523 

RATE  of  interest 459,  459-461 

REDUCTION  OF  DAMAGES, 

by  return  of  property  converted 287-294 

by  benefit  conferred  by  the  wrong-doing  ....  295-296 

by  i-eceipt  of  insurance-money 296-298 

by  gift  of  third  party  because  of  injury    ....  298-300 

REMOTENESS  of  resale 494-497 

REPRESENTATIONS,  false.     See  Fraud. 

REPUTATION,  d.  for  injury  to 469-471 

RESALE, 

price  of,  may  be  shown  where  no  market  value      .       420-423 

when  remote 494,  498 

RETURN  OF   PROPERTY,  d.  when  reduced  by       .       287-294 
RISK  of  loss  to  be  considered  in  estimating  profits  of  con- 
tract   499 

SALE, 

d.  for  breach  of  contract  of  by  vendor      .     .     .    476-491,  501 

by  vendee 501 

d.  for  breach  of  warranty  of  quality  in     ...     .       552-555 

of  title  in 556-559 

SECOND   VERDICT,  practice  as  to  setting  aside  ....    577 

SERVICES, 

amount  of  recovery  for 512 

value  of 230,238 


index.  623 

SEVERANCE  FROM  REALTY,  Page 

d.  for 329-348 

d.  against  purchaser  from  wrong-doer  in  case  of     .    349-350  n. 

d.  in  lieu  of  replevin  in  case  of 337-360  n. 

SLANDER.     See  Defamation. 

SPECULATION,  profits  of,  too  uncertain  for  recovery       256-262 

STEREOTYPE   PLATES,  value  of 424 

STOCK  in  corporation,  value  of 410—420 

SUB-CONTRACT,  profits  of,  when  recoverable      .     .       494,  498 

TAKING  by  eminent  domain,  interest  iu  case  of     .     .       457,  458 
TELEGRAPH    COMPANIES,   how  far   liable    for    conse- 
quences of  negligence 152-169 

what  consequences  are  within  contemplation  152-156,  158-164 
how  far  responsible  for  cipher  messages  .        156-158,  164-169 
not  responsible  for  loss  of  expected  profit  of  stock  specu- 
lation              256-262 

d.  for  mental  suffering  in  action  against       .     .     .        368-382 

TIMBER,  d.  for  wrongfully  cutting 341-348 

TIME, 

value  of,  how  ascertained 228,  254 

expected  promotion,  whether  element  of  value  of  .       265,  266 
where  salary  of  injured  party  continues    ....        299-300 

at  which  d.  should  be  estimated 302,  478 

See  Higher  Intermediate  Value. 
TROVER,  d.  in,  when  reduced  by  return  of  property  .     .     .     287 

by  application  to  payment  of 

owner's  debt    .     .     .        287-291 
by    application    to    owner's 

use 293-294 

by  offer  to  return     ....     293 

d.  in,  may  exceed  value  of  property 467-469 

d.  in,  whether  to  include  result  of  wrong-doer's  labor  329-337, 

341-350  n. 
time  of  estimating  d.  for.     See  Higher  Intermediate 
Value. 

USE, 

of  money,  d.  for  loss  of,  is  interest 206-208 

of  personal  property,  expected  profits  not  recoverable  for 

loss  of 263-265 

d.  for,  usually  are  rental  value       208-215 
of  patented  machine,  value  of 431-435 


024  INDEX. 

VALUE,  Page 

measured  by  market  price  if  any    .     .     .       404—405,  410-412 
measured  by  value  at  nearest  market,  with  allowance  for 

expense  of  carriage,  &c.     404- 
407,  425 
with  allowance  for  risk  of 
moving  ....       429-430 

means  value  for  most  profitable  use 407-410 

as  where  valuable  only  to  purchaser  or  to 

owner 408,  424 

market  value  of  shares  of  stock 410-420 

whether  market  price  artificially  enhanced  is   measure 

of  412-420 

where  no  market,  how  found 497 

price  of  resale  as  evidence  of      .       420-423 

of  stereotype  plates       424 

of  services 228-238 

of  second-hand  furniture 426-427 

of  second-hand  clothes 428 

of  family  portrait 428-429 

of  use  of  patented  machine 431-435 

of  private  way 584-5S5 

effect  on,  of  illegality  of  property 430-431 

necessity  of  evidence  of 69-72 

of  use  of  property.     See  Use. 
of  time.     See  Time. 

fluctuation  in,  after  injury.    See  Higher  Intermediate 
Value. 

VERDICT, 

excessive,  when  reduced  by  court 1-3,  7 

when  set  aside 9-10 

in  case  of  maihem 5-6 

inadequate,  when  set  aside 6-7,  8-9,  10-12 

when  increased 6 

WARRANTY, 

of  land,  d.  for  breach  of 528-537 

of  quality  of  chattels,  d.  for  breach  of      ....  552-555 

of  title  to  chattels,  d.  for  breach  of      .     .     .     .     •  556-559 


This  book  is  DUE  on  the  last  date  stamped  below 


MAR  1  -  J98g 
h»  (Amy  tec'tf 

MAR  16 1986 


Form  L-9-10m-2,'31 


LAW  IJBRARY 
UNIVERi  p  CALIFORNIA 


T  rkG       A  TV'/^t-.i*-    n. 


UC  SOUTHERN!  REGIONAL  LIBRARY  FACILITY 


AA    000  694  565    3 


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